Mathes v. Faucheux

226 So. 3d 503, 2017 La.App. 4 Cir. 0329, 2017 WL 3405462, 2017 La. App. LEXIS 1482
CourtLouisiana Court of Appeal
DecidedAugust 9, 2017
DocketNO. 2017-CA-0329
StatusPublished
Cited by3 cases

This text of 226 So. 3d 503 (Mathes v. Faucheux) 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
Mathes v. Faucheux, 226 So. 3d 503, 2017 La.App. 4 Cir. 0329, 2017 WL 3405462, 2017 La. App. LEXIS 1482 (La. Ct. App. 2017).

Opinion

JAMES F. MCKAY III, CHIEF JUDGE

_JjThis appeal stems from a contentious custody dispute. Jonathan Mathes (Mr. Mathes) seeks review of two judgments rendered on January 30, 2017, setting forth custody and denying his Exception of No Cause of Action. For the reasons set forth below, we affirm both judgments.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The child, N.M.1, was born on September 6, 2012. The parents, Mr. Mathes and Gia Faucheux (Ms. Faucheux), were never married.

Mr. Mathes ánd Ms. Faucheux began a long distance relationship in 2010 while Mr. Mathes resided in Algiers (a subdivision of New Orleans), Louisiana, and Ms. Faucheux resided in Houston, Texas. After becoming pregnant, Ms. Faucheux lived with Mr. Mathes in New Orleans for a short time, moving back to Houston when she was four months pregnant. N.M. was born in Houston. Shortly thereafter, Ms. Faucheux and N.M. moved to New Orleans to 'reside with Mr. LMathes. Following a rocky relationship, Ms. Faucheux and N.M. moved back to Houston on January 1,2014.

On January 7, 2014, Mr. Mathes filed a Petition for Joint Legal Custody, seeking domiciliary status. On January 14, 2014, Mr. Mathes filed a motion objecting to Ms. Faucheux’s unauthorized relocation of the minor child pursuant to Louisiana’s relocation statute, La. R.S. 9:355.1 et seq.2 Ms. Faucheux filed an Answer and Reconven-tional Demand, seeking sole custody of N.M.

A hearing was held on April 2, 2014. The parties entered into a Consent Judgment, signed by the court on May 1, 2014, recognizing Mr. Mathes as the biological father of N.M. and designating Louisiana as the child’s home state. An Interim Consent Judgment was also rendered,on May 1, 2014, wherein the parties agreed to participate in a custody evaluation with court appointed expert, Martha Bujanda (Ms. [506]*506Bujanda). The Interim Consent Judgment further set forth an “interim” physical custody schedule “without prejudice.” Pursuant to this schedule, the parties would share a one week on/one week off arrangement, with the exchange of N.M. taking place on Sundays in Lafayette, Louisiana.

On July 14, 2014, Ms. Bujanda issued her first report. Based on her evaluation of Ms. Faucheux, Mr. Mathes, and N.M., she recommended that the parties keep the same one week on/one week off schedule. She further recommended that Louisiana should be the child’s primary residence.

|3On March 16, 2015, the trial court ordered Ms. Bujanda to update her evaluation. After conducting a re-evaluation, a second report was issued on May 25, 2015, wherein her recommendations for shared custody remained unchanged. Ms. Bujanda again recommended that the child’s primary residence remain in Louisiana.

In a judgment dated June 16, 2015, the trial court ordered that Ms. Bujanda’s recommendations be implemented on an interim basis. In accordance with that ruling, N.M. moved back to Louisiana to take up his primary residence with Mr. Mathes. The judgment further ordered that the parties participate in a custody evaluation with Dr. Erin L. Skaff Vandenweghe (Dr. Vandenweghe).

Dr. Vandenweghe conducted an evaluation of the parties and rendered a report in December 2015, wherein she recommended that Ms, Faucheux be designated as the primary custodian with as much visitation to Mr. Mathes as possible. Dr. Vandenweghe further stated that if the parents were to live in the same city, she would recommend equal physical custody.3

On January 19, 2017, Mr. Mathes filed an Exception of No Cause of Action, asserting that Ms. Faucheux’s Reconventional Demand failed to make any request to relocate the minor child’s residence. Mr. Mathes asserts that Ms. Faucheux failed to provide notice of the request for relocation, and therefore failed to abide by the relocation statute. Mr. Mathes also filed a Motion in Limine seeking to prohibit testimony by Dr. Vandenweghe, and to exclude her report because it Lmakes recommendations regarding the relocation of the child to Houston, which Ms. Faucheux failed to properly plead. Both motions were deferred to the day of trial.

Pursuant to Mr. Mathes’ Motion to Determine Final Custody, trial was held on January 25, 26 and 27, 2017.4 The trial court heard testimony from Ms. Faucheux, Mr. Mathes, court appointed evaluators Ms. Bujanda and Dr. Vandenweghe, along with Dr. Kristen Luscher (Dr. Luscher), a witness called by Mr. Mathes.

Ms. Bujanda and Dr. Vandenweghe testified as to their findings based on their court ordered evaluations. Dr. Luscher never evaluated the parties. Rather, Mr. Mathes called Dr. Luscher as an expert in clinical psychology to critique the evaluations of the court appointed experts. Dr. Luscher opined that some of the tests used by Dr. Vandenweghe were not applicable to child custody evaluations. Dr. Luscher could not say whether she agreed with the opinions of Ms. Bujanda and Dr. Vande-nweghe because she never met with the parties or the child. Moreover, she did not [507]*507provide a recommendation of her own concerning the custody of N.M.

Judgment was rendered on January 30, 2017, denying Mr. Mathes’ Exception of No Cause of Action and his Motion in Limine.5 A separate judgment was rendered on that date, granting joint custody to the parties and designating Ms. |,-.Faucheux as the domiciliary parent with liberal and reasonable visitation to Mr. Mathes. The judgment sets forth a very detailed schedule for school year, summer, and holiday visitation with the child.

Mr. Mathes appealed both of the January 30, 2017 judgments. On appeal, Mr. Mathes asserts six assignments, some of which are duplicative.

Assignments of error one and two assert that the trial court erred in denying the Exception of No Cause of Action regarding relocation and in making a relocation determination not properly before the court. Assignments of error three, five, and six assert that the trial court erred in making its custody determination without a finding of a change in circumstances and without considering the best interest factors under the relocation statute. In assignment of error four, Mr. Mathes avers that the trial court erred in admitting highly prejudicial text messages, which he sent to Ms. Faucheux before N.M. was born.

LAW AND ANALYSIS

Standard of Review

Child custody determinations are reviewed under the abuse of discretion standard. State through Dep’t of Children & Family Servs. Child Support Enforcement, 2016-0979, p. 12 (La. App. 4 Cir. 4/12/17), 216 So.3d 130, 139 (citing Leard v. Schenker, 2006-1116, p. 3 (La. 6/16/06), 931 So.2d 355, 357). Likewise, in a relocation case, the trial court’s determination “will not be overturned absent a clear showing of abuse of discretion.” Curole v. Curole, 2002-1891, p. 4 (La. 10/15/02), 828 So.2d 1094, 1096. “In reviewing the record to determine whether the trial court’s ultimate conclusion constitutes an abuse of Indiscretion, an appellate court must accept each factual finding the trial court made in arriving at that conclusion, unless the particular factual finding is manifestly erroneous.” LaGraize v. Filson, 2014-1353, p. 15 (La. App. 4 Cir. 6/3/15), 171 So.3d 1047, 1054.

Assignments of Error One and Two: Exception of No Cause of Action/Relocation

Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
226 So. 3d 503, 2017 La.App. 4 Cir. 0329, 2017 WL 3405462, 2017 La. App. LEXIS 1482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathes-v-faucheux-lactapp-2017.