LAUREN RANDAZZA NO. 20-CA-439
VERSUS FIFTH CIRCUIT
PIETRO M. GIACONA COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 792-773, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
March 24, 2021
JUDE G. GRAVOIS JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
AFFIRMED JGG FHW HJL COUNSEL FOR PLAINTIFF/APPELLEE, LAUREN RANDAZZA Keith R. Credo
COUNSEL FOR DEFENDANT/APPELLANT, PIETRO M. GIACONA Christy M. Howley M. Elizabeth Bowman GRAVOIS, J.
Pietro M. Giacona, appellant, and Lauren Randazza, appellee, could not
agree on a school of choice for their three-year-old daughter Mila to attend. After
unsuccessfully attempting to mediate the issue with their parent coordinator, the
matter was brought before a domestic hearing officer on July 16, 2020, who
recommended the school selected by Ms. Randazza. This recommendation was
made an Interim Judgment of the Court on July 20, 2020. Mr. Giacona timely
objected, and the matter was tried de novo before the district court on August 5,
2020. On that date, the district court issued a judgment holding that the minor
child shall attend St. Anthony of Padua School in New Orleans, Louisiana, the
same school recommended by the hearing officer and selected by Ms. Randazza.
Mr. Giacona’s timely appeal followed. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Ms. Randazza and Mr. Giacona had a romantic relationship but never
married. Their daughter Mila was born on June 2, 2017. The relationship ended in
September of 2018. While the parties were a couple, they lived on the east bank of
Jefferson Parish in Old Jefferson, with Ms. Randazza being employed as a teacher
in Kenner and Mr. Giacona being employed with a governmental contractor on the
naval base in Belle Chasse.1 Following their break up, Mr. Giacona moved his
home to the naval base, while Ms. Randazza’s home remained on the east bank of
Jefferson Parish.
Ms. Randazza filed a Petition for Custody and Support on March 6, 2019, to
which Mr. Giacona reconvened. After a custody evaluation with Dr. Karen Van
Beyer, the matter came for a hearing before the domestic commissioner on August
6, 2019 and August 23, 2019. On August 23, 2019, pursuant to the hearing, the
1 Belle Chasse is located in Plaquemines Parish on the west bank of the Mississippi River, immediately adjacent to the west bank of Jefferson Parish.
20-CA-439 1 parties entered into a Consent Judgment. While not awarding “domiciliary
custody” to either parent, as per Dr. Van Beyer’s evaluation and report, the
Consent Judgment stated that “the parties, Lauren Randazza and Pietro M.
Giacona, should be awarded joint custody with equal shared physical time of the
minor child, Mila Giacona. Lauren Randazza shall be in charge of religious and
educational decisions for the child, in consultation with Pietro M. Giacona.”
(Emphasis added.) Ms. Randazza is a teacher. Her master’s degree in early
childhood intervention, plus her practice of Catholicism, provided the basis for this
term of the Consent Judgment.2
The Consent Judgment reflected that the parties would share physical
custody of their daughter on a “2/2/3” basis. The Consent Judgment stated that
they agreed to send Mila to Christ the King School in Terrytown, which is located
on the west bank of Jefferson Parish, which she in fact attended for the 2019-20
school year.3 However, Christ the King School closed permanently following the
2019-20 school year, and the parties had to find a new school for their child to
attend. Mr. Giacona recommended several schools on the west bank of Jefferson
Parish, which he narrowed down to two schools, Immaculate Conception School,
located in Marrero, and St. Rosalie School, located in Harvey. Ms. Randazza
recommended St. Anthony of Padua’s preschool, which is located in the Mid-City
neighborhood of New Orleans on Canal Street.4 Unable to come to an agreement,
the parties engaged the services of Terri Campesta, the parenting coordinator with
whom they had previously worked. Ms. Campesta attempted to mediate an
agreement between the parties on a school choice, but was unsuccessful.
2 In addition, Ms. Randazza has a second master’s degree in counseling. It is explained in the record that Mr. Giacona is not active in any particular faith. 3 The parties selected Christ the King School after considering several other schools on both the east and west banks. 4 Ms. Randazza explained that she did not include the other schools she had previously recommended before they chose Christ the King School, because those schools had already been considered and turned down the year before.
20-CA-439 2 Ultimately, after considering the schools each party chose, Ms. Campesta issued a
report finding that the most “feasible” schools were either Immaculate Conception
School or St. Rosalie School on the west bank, but she declined to formally
recommend either school as she believed such a recommendation would impact
Mr. Giacona’s child support obligation, which was beyond the scope of her
authority. Among other things affecting her endorsement, Ms. Campesta
considered the distances Mila would have to commute while in each parent’s care,
the availability of Mila’s speech therapy at the different campuses, a comparison of
the cost of tuitions, and the availability of before-care and after-care at each school.
On June 18, 2020, Ms. Randazza filed a Rule to Determine School Choice,
citing the parties’ unsuccessful attempt at mediation with Ms. Campesta, and
alleging that Mr. Giacona’s objections to St. Anthony of Padua School were based
on his convenience and financial concerns, rather than on Mila’s best interest. On
July 7, 2020, Mr. Giacona filed a Motion to Designate School, for Incidental
Matters, and for Attorney Fees and Court Costs. The parties went before the
hearing officer on July 16, 2020, who recommended that the minor child attend the
school selected by Ms. Randazza, St. Anthony of Padua’s preschool. This
recommendation was made an Interim Judgment of the Court on July 20, 2020.
Mr. Giacona timely objected to the Interim Judgment.
The matter was then heard in a trial de novo by the district court judge on
August 5, 2020, who received the parties’ testimonies, as well as the testimony of
Ms. Campesta, the parenting coordinator. The witnesses testified regarding the
virtues and drawbacks of the different schools, including the distances and
commute times between the schools and the parties’ residences/work places. The
trial court also received the report of Ms. Campesta, a letter from Mila’s speech
therapist, documentary evidence showing the tuition rates of the schools, as well as
the hearing officer’s recommendations and stipulations of August 6, 2019, the
20-CA-439 3 Consent Judgment of August 23, 2019, the hearing officer’s recommendation of
July 16, 2020, and the July 20, 2020 Interim Order of the Court. At the close of
trial, the court ruled from the bench, citing the provisions of the August 23, 2019
Consent Judgment that placed Ms. Randazza in charge of educational and religious
decisions, and affirmed the hearing officer’s Interim Judgment that Mila should
attend St. Anthony of Padua School, the school selected by Ms. Randazza. A
written judgment was signed that same day.5 Mr. Giacona filed this timely appeal.
On appeal, Mr. Giacona argues first that the trial court erred in giving
unilateral educational decision-making power to Ms. Randazza, when she is not the
domiciliary parent. Second, he argues that the trial court erred in placing a
rebuttable presumption burden of proof on Mr. Giacona, when no domiciliary
parent was designated. Third, he argues that Ms. Randazza failed to meet her
burden of proof that her “unilateral” selection of St. Anthony of Padua School was
in Mila’s best interest. Fourth, he argues that the trial court’s alleged ex parte
communication with Dr. Van Beyer, the custody evaluator, was improper.
STANDARD OF REVIEW
A trial court’s determination in a child custody case will not be disturbed
unless there is a clear abuse of discretion. Schmidt v. Schmidt, 02-885 (La. App. 5
Cir. 1/14/03), 839 So.2d 150, 152. An appellate court is required to extend great
weight to the factual conclusions of trial courts which are based on reasonable
evaluations of credibility and reasonable inferences of fact. Id., citing Rosell v.
ESCO, 549 So.2d 840 (La. 1989).
FIRST AND SECOND ASSIGNMENTS OF ERROR
Mr. Giacona argues first that the trial court erred in giving “unilateral”
educational decision making power to Ms. Randazza, when she is not the
5 This Judgment incorrectly refers to the hearing officer’s recommendation as having been made on July 18, 2020, rather than on July 16, 2020.
20-CA-439 4 domiciliary parent. Second, he argues that the trial court erred in placing a
rebuttable presumption burden of proof on Mr. Giacona, when no domiciliary
parent was designated. Because these assignments of error relate to the issue of
what it means to be a domiciliary parent, they are considered together.
La. R.S. 9:335 is entitled in part “Joint custody decree and implementation
order.” It provides among other things that “[t]he implementation order shall
allocate the legal authority and responsibility of the parents,” and that “[i]n a
decree of joint custody, the court shall designate a domiciliary parent except when
there is an implementation order to the contrary or for other good cause shown.”
See La. R.S. 9:335(A)(3) and (B)(1). Further, paragraph (B)(3) of the statute states
that “[t]he domiciliary parent shall have authority to make all decisions affecting
the child unless an implementation order provides otherwise. All major decisions
made by the domiciliary parent concerning the child shall be subject to review by
the court upon motion of the other parent. It shall be presumed that all major
decisions made by the domiciliary parent are in the best interest of the child.”
Finally, paragraph (C) of the statute states that “[i]f a domiciliary parent is not
designated in the joint custody decree and an implementation order does not
provide otherwise, joint custody confers upon the parents the same rights and
responsibilities as are conferred on them by the provisions of Title VII of Book I of
the Civil Code.”
The parties entered into a Consent Judgment on August 23, 2019 that placed
Ms. Randazza “in charge of” educational and religious decisions for the minor
child, “in consultation with” Mr. Giacona.6 In Rousset v. Rousset, 14-663 (La.
6 Though Mr. Giacona appeals the judgment of the court which determined that the minor child should attend the school selected by Ms. Randazza, it is important to point out that nowhere in the pleadings does Mr. Giacona seek to modify or nullify this term of the Consent Judgment itself that placed Ms. Randazza “in charge of religious and educational decisions for the child.”
20-CA-439 5 App. 5 Cir. 4/15/15), 170 So.3d 253, 256, this Court summarized the law
applicable to consent judgments as follows:
A consent judgment is a bilateral contract wherein the parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing the hope of gain against the fear of loss. [La.] C.C. art. 3071. As such, it should be governed by the same rules of construction that apply to contracts. Nelson v. Nelson, 08-85 (La. App. 5 Cir. 6/19/08), 985 So.2d 1285, 1290.
A compromise agreement which forms the basis for a consent judgment gets its binding force and effect from the consent of the parties. The interpretation of the consent judgment is the determination of the common intent of the parties. [La.] C.C. art. 2045; Nungesser v. Nungesser, 95-2298 (La. App. 1 Cir. 6/28/96), 694 So.2d 312, 314. The meaning and intent of the parties is ordinarily determined from the four corners of the instrument. Millet v. Millet, 04-406 (La. App. 5 Cir. 10/26/04), 888 So.2d 291, 293. Each provision in the contract is interpreted in light of the other provisions so that each is given the meaning suggested by the contract a whole. When the words of a contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. [La.] C.C. art. 2046; Sutherlin v. Sutherlin, 05-535 (La. App. 5 Cir. 2/3/06), 930 So.2d 51, 53.
In light of this jurisprudence, it is apparent that the Consent Judgment
controls the rights and responsibilities of the parties in this case, notwithstanding
any reports or custody evaluations that took place prior to the confection and entry
of the Consent Judgment and on which the Consent Judgment may have been
based in whole or in part. Further, the term of the Consent Judgment stating that
“Lauren Randazza shall be in charge of religious and educational decisions for the
child, in consultation with Pietro M. Giacona” is clear and explicit.
In this particular case, the Consent Judgment does not name either parent as
the domiciliary parent. As per La. R.S. 9:335, this is permissible based upon Dr.
Van Beyer’s recommendation, in her report, that neither parent should be so
designated.7 Thus, although neither party was designated as domiciliary parent, the
Consent Judgment’s term placing Ms. Randazza “in charge of” religious and
7 Dr. Van Beyer’s report was not introduced into evidence in whole at the trial de novo conducted on August 5, 2019. A two-page excerpt of what appears to be Dr. Van Beyer’s report is found in exhibit P-8, which contains the Hearing Officer’s recommendations and stipulations from August 6, 2019.
20-CA-439 6 educational decisions for the minor child gave her the same rights, by analogy, as a
domiciliary parent for those particular issues. Accordingly, the law on the scope of
a domiciliary parent’s decision making power is instructive to our analysis.
Contrary to Mr. Giacona’s arguments both in the trial court and in brief, the
domiciliary parent’s decision making authority is not unilateral, nor absolute. As
previously stated, all major decisions made by the domiciliary parent, which would
include the choice of schools, are subject to judicial review upon motion by the
non-domiciliary parent. La. R.S. 9:335(B)(3); Shaw v. Shaw, 30,613 (La. App. 2
Cir. 6/24/98), 714 So.2d 906, 910, writ denied, 98-2414 (La. 11/20/98), 729 So.2d
556, and writ denied, 98-2426 (La. 11/20/98), 729 So.2d 558. See also Duhe v.
O’Donnell, 15-683 (La. App. 5 Cir. 5/26/16), 193 So.3d 455, 459, citing Walden v.
Walden, 00-2911 (La. App. 1 Cir. 8/14/02), 835 So.2d 513.
Here, Mr. Giacona was afforded judicial review by a hearing de novo in the
district court, as well as appellate review by this Court. Thus, his argument that
Ms. Randazza was afforded unilateral decision making authority, contrary to law,
is without merit.
Mr. Giacona also points out that the Consent Judgment appointed a parent
coordinator (Ms. Campesta) to mediate custody/visitation issues in the event the
parties could not agree on a particular issue. The Consent Judgment did not state,
however, that the parent coordinator would have decision-making power in the
event the parents could not agree. The record shows that Ms. Campesta did indeed
attempt to mediate an agreement on the school choice issue, as per the Consent
Judgment, but was unsuccessful in this regard. In fact, as noted above, Ms.
Campesta acknowledged that she could not formally recommend either
Immaculate Conception School or St. Rosalie School, as she believed such a
recommendation would impact Mr. Giacona’s child support obligation, which was
beyond the scope of her authority.
20-CA-439 7 Next, Mr. Giacona argues that it was error to place a “rebuttable
presumption” burden of proof upon him. However, we find no error in this regard.
In the judicial review of the domiciliary parent’s major decisions, it is presumed
that all major decisions made by the domiciliary parent are in the best interest of
the child and the burden of proving they are in fact not in the best interest of the
child is placed on the non-domiciliary parent who opposes the decision. Shaw v.
Shaw, 714 So.2d at 910. Thus, the law is clear that in this particular case, while
Ms. Randazza is not the domiciliary parent, she enjoys a rebuttable presumption
that her choice of school is in their daughter’s best interest, based upon the terms
of the Consent Judgment and La. R.S. 9:335, which presumption Mr. Giacona was
required to rebut in order to prevail. Accordingly, there is no merit to this
assignment of error that the rebuttable presumption was misplaced.
THIRD ASSIGNMENT OF ERROR
Mr. Giacona argues that Ms. Randazza failed to meet her burden of proof
that her “unilateral” selection of St. Anthony of Padua School was in Mila’s best
interest. However, as noted above, the burden of proof was on Mr. Giacona to
rebut Ms. Randazza’s choice of school, rather than it being her burden of proof to
justify her choice of school was in Mila’s best interest. For the following reasons,
we find that Mr. Giacona did not rebut the presumption in favor of Ms. Randazza’s
choice of school.
The parties presented evidence in support of their school choices, as
described previously, which outlined the virtues and drawbacks of St. Anthony of
Padua School and the two schools on the west bank selected by Mr. Giacona. Mr.
Giacona testified that he selected possible schools on the basis of first, reducing
Mila’s previous commuting time to and from Christ the King on Ms. Randazza’s
days, and second, the availability of before-care and after-care, speech therapy, as
well as the “religious aspect they want.” The record further shows that Ms.
20-CA-439 8 Randazza’s choice of schools was based first upon the excellence of the curriculum
and educational opportunities, as well as a school that was Catholic and as
equidistant as possible to the parties’ homes. She also expressed that it would be
easier for her to become involved with parish life at St. Anthony than at the two
west bank church parishes.
The record shows that Ms. Randazza willingly provided accommodation for
Mr. Giacona’s concerns, including covering his possible occasional inability to
pick Mila up before after-care ended due to work or traffic, the availability of her
speech therapy on the east bank, and the increased costs associated with St.
Anthony of Padua School.
Mr. Giacona focused on the distance both he and Mila would have to travel
on days he exercised physical custody, because of the necessary commute across
the Mississippi River from his home in Belle Chasse to the Mid-City neighborhood
of New Orleans, where St. Anthony of Padua School is located. While the
commute is an important factor, the trial court noted that the schools on the west
bank would involve similar commuting issues for Mila while in Ms. Randazza’s
custody, and had in fact involved that same issue while Mila attended Christ the
King. At the hearing in the trial court, Ms. Randazza testified that she would be
able to enlist help from her parents and family in picking up Mila from St.
Anthony of Padua on Mr. Giacona’s days if work requirements or bridge traffic
prevented him from collecting her prior to the end of after-care, which closed
earlier than the after-care offered at the two west bank schools. Ms. Randazza
stated that she also made arrangements for Mila’s speech therapy to continue at
another location on the east bank. (Previously, Mila’s speech therapist saw her at
Christ the King.)
Mr. Giacona objected to St. Anthony of Padua School on several other
bases, not only the commute time. He stated that St. Anthony of Padua’s facility
20-CA-439 9 for the pre-school was a small repurposed building, unlike the “beautiful new and
updated” building at Immaculate Conception School.8 He also noted that Mila
would have to apply to Christian Brothers School next year, but would not have to
reapply if accepted at Immaculate Conception School for pre-school, as the school
continued to the elementary grades.9 He noted that the principal at Immaculate
Conception School told him that many students from Christ the King were
enrolling at Immaculate Conception School, which meant that Mila would know
other students, unlike at St. Anthony of Padua. He also noted that the tuition cost
of St. Anthony of Padua/Christian Brothers was considerably more than at
Immaculate Conception School, as well as their before-care and after-care
offerings provided less coverage and were more expensive. In response, Ms.
Randazza agreed that she would bear the difference in tuition costs and after-care
costs that Mr. Giacona would have paid at his choices of schools, so that his
financial obligation would not increase.
Ms. Randazza testified to the excellent curriculum at St. Anthony of Padua,
as well as the excellent curriculum and highly regarded reputation at Christian
Brothers School, the elementary school located adjacent to St. Anthony of Padua
and where many of its students matriculate after attending St. Anthony of Padua.
Ms. Randazza also investigated the curriculum of Immaculate Conception, which
she described as being based on “standards” but not the type of curriculum or
methods offered at St. Anthony, which in her opinion were superior. Without any
denigration of Mr. Giacona’s chosen schools, the trial court concurred with the
evidence provided by Ms. Randazza regarding the superior reputation of Ms.
Randazza’s school choice and its long-term importance in Mila’s education.
8 Though Mr. Giacona recommended two schools, the hearing tended to focus more on Immaculate Conception School than St. Rosalie School. 9 Ms. Randazza testified that she was told that students at St. Anthony of Padua School were preferred for enrollment to Christian Brothers School.
20-CA-439 10 Accordingly, after considering the evidence in the record, we find that Mr.
Giacona failed to overcome the presumption of the law that Ms. Randazza’s choice
of school was in the best interest of Mila. While he showed that his choice of
school was more convenient for him, he did not show that Mila’s attendance at St.
Anthony of Padua School was not in her best interest. He also did not show that as
a whole, Immaculate Conception School was a better choice for Mila. The legal
presumption in favor of Ms. Randazza’s choice must prevail in the absence of
evidence showing that attendance at St. Anthony of Padua School is not in Mila’s
best interest. Upon review, per Schmidt v. Schmidt, supra, we find no abuse of
discretion in the trial court’s judgment. This assignment of error is without merit.
FOURTH ASSIGNMENT OF ERROR
Finally, Mr. Giacona argues on appeal that the trial court had an ex parte
communication with Dr. Van Beyer, the author of the custody evaluation, on the
morning of the trial de novo. He argues that the trial court’s reliance on the
custody evaluator’s report that was changed when the parties consented, and which
report was not entered into evidence by either party, constituted an overreach of
the court’s authority.
In brief, Mr. Giacona refers to a “veiled” reference made by the trial court
during the hearing that could possibly be construed that the trial court may have
communicated with Dr. Van Beyer on the morning of the trial de novo regarding
her report. Having thoroughly reviewed the entire transcript, we find that it is not
at all clear from the record as to whether the trial court did in fact have an ex parte
communication with Dr. Van Beyer. In any event, neither party objected and
neither party sought to call Dr. Van Beyer as a witness or to keep the record open
for introduction of her testimony or her complete report. As such, this assignment
of error was not preserved for appellate review.
20-CA-439 11 Further, our thorough review of the record and transcript shows clearly that
the trial court relied upon the Consent Judgment in her ruling, not a report that was
not entered into evidence, or an alleged ex parte communication with the author of
that report. As stated previously, the Consent Judgment controls the rights and
responsibilities of the parties herein and the terms of the Consent Judgment are
clear and explicit. This assignment of error is without merit.
DECREE
For the foregoing reason, the judgment of the trial court under review is
affirmed.
AFFIRMED
20-CA-439 12 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN 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
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20-CA-439 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE) KEITH R. CREDO (APPELLEE) CHRISTY M. HOWLEY (APPELLANT) M. ELIZABETH BOWMAN (APPELLANT)
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