Ganaway v. Ganaway
Decision Date | 28 February 2018 |
Docket Number | 17–875 |
Citation | 238 So.3d 540 |
Parties | Danielle GANAWAY v. Kyle GANAWAY |
Court | Court of Appeal of Louisiana — District of US |
Elizabeth B. Carr, Bolen, Parker, Brenner, Lee & Engelsman, Ltd., 709 Versailles Blvd, P.O. Box 11590, Alexandria, LA 71315–1590, (318) 445–8236, COUNSEL FOR PLAINTIFF/APPELLANT: Danielle Ganaway (now Semento–Brooks)
Misty Dawn Smith, Attorney at Law, 301 South Third Street, Leesville, LA 71446, (337) 238–2800, COUNSEL FOR DEFENDANT/APPELLEE: Kyle Ganaway
Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.
In this custody matter, Danielle Ganaway (now Semento–Brooks) appeals the trial court's ruling that (1) modified a co-domiciliary custody order to name Kyle Ganaway as the primary domiciliary parent of the parties' children, and (2) denied her motion seeking authorization to relocate her children to the Dallas–Fort Worth area. For the reasons that follow, we reverse the trial court's modification of custody and affirm the denial of Danielle's motion for relocation.
Danielle Ganaway and Kyle Ganaway were married in 2005. They are the parents of two children who were born in 2005 and 2008, respectively. The parties separated in July 2010, and on August 13, 2010, Danielle filed a petition for divorce. The parties reside in Vernon Parish.
On September 23, 2010, the parties entered into a stipulation wherein they agreed that they would be the co-domiciliary parents of the children, with Kyle to have reasonable visitation every Friday through Sunday pursuant to a "Joint Implementation Custody Plan." A judgment was signed on November 22, 2010, in accordance with the parties' agreement.
On January 27, 2011, the parties entered into an "interim joint stipulation" agreeing that the children would live with Danielle's parents in Texas for the next six months. According to Danielle, the children returned to Vernon Parish in July 2011 and moved in with her as she had secured public housing.
A judgment of divorce was rendered November 26, 2012. The judgment also stated that Danielle was allowed to remove the minor children from Louisiana for the purpose of relocation to Keller, Texas, and that Kyle would have visitation any weekend provided that he gave Danielle three days' notice. However, according to Danielle, she decided not to move to Keller, Texas at that time, but rather wanted to wait until the end of the school year; by that time, however, Kyle did not consent to the children moving.
On January 6, 2015, Danielle filed a Rule for Contempt alleging that Kyle had failed to return the children following a scheduled holiday visitation. She also sought a modification of custody. That same day, Kyle filed a motion seeking temporary ex-parte custody alleging that he had been notified by the sheriff's department that Danielle was required to be hospitalized due to a suicide attempt. The trial judge denied the interim relief sought by Kyle, but set the matter for hearing.
The matter was heard on February 5, 2015, at which time the parties stipulated to a joint, co-domiciliary, custody arrangement. The trial court signed a judgment on February 26, 2015, in accordance therewith. Danielle was awarded with physical custody of the children, with the exception of the second, third, and fourth weekends of the month, and Wednesday nights, when Kyle would have physical custody. A holiday visitation schedule was also established.
On December 5, 2015, Danielle filed a petition which sought to modify custody as well as a ruling of contempt and suspension of visitation. She alleged that Kyle had physically abused the children during a visitation. On December 14, 2015, the trial judge denied the interim emergency relief requested by Danielle, but signed an "interim order," stating that the visitation schedule for Kyle shall remain in effect until the matter was heard and that his visitation was to be supervised. The matter was heard January 21, 2016, at which time the parties entered into a stipulation. Judgment was rendered that day, but not signed until November 28, 2016. The judgment ordered that:
The judgment further required Kyle to become current on his child support obligation within fifteen days.
On May 26, 2016, Danielle filed a motion seeking to relocate the children's residence from Leesville, Louisiana to the "Dallas–Fort Worth Area." She alleged that she had remarried, that her current husband was in the Army Reserves and was stationed there, that the children's maternal grandparents resided there, that she wanted to complete her degree at the University of North Texas for increased job opportunities, and that there were improved educational options for her children. Danielle's motion was set for hearing July 11, 2016, and thereafter was continued several times. Meanwhile, on September 13, 2016, Judge Anthony Eaves recused himself from these proceedings, which were then reassigned to Judge Scott Westerchill.
Danielle's motion to relocate the children was heard before Judge Westerchill on November 28, 2016, and January 10, 2017. The trial court signed a judgment on February 21, 2017, that denied Danielle's motion to relocate. The judgment also modified the February 26, 2015 judgment to name Kyle as the primary domiciliary parent while maintaining the same physical custody schedule between the parties.
Danielle appeals and asserts the following as assignments of error:
In Evans v. Lungrin , 97-541, 97-577, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735, the Louisiana Supreme Court stated:
It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO , 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman's Fund Ins. Co. , 94-1252 (La. 2/20/95), 650 So.2d 742, 747, rev'd in part, on other grounds, 96-3028 (La. 7/1/97), 696 So.2d 569, reh'g denied , 96-3028 (La. 9/19/97), 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp. , 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha , 625 So.2d at 1006. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Lasha , 625 So.2d at 1006.
On appeal, Danielle argues that the trial court's custody modification awarding Kyle with domiciliary status was an error of law since neither party sought a modification of custody and the issue was not otherwise properly before the trial court for consideration. We agree.
We addressed a similar issue in Galland v. Galland, 12-1075 (La.App. 3 Cir. 3/20/13), 117 So.3d 105. In Galland , following a hearing regarding where the parties' children were to attend school, the trial court rendered a judgment modifying the parties' co-domiciliary custody arrangement and named the father as the primary domiciliary parent. In reversing that portion of the judgment, we stated the following:
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...motion to relocate did not include a motion to modify custody.In support of this argument, Mr. Cooper cites Ganaway v. Ganaway , 2017-0875 (La. App. 3 Cir. 2/28/18), 238 So.3d 540. However, Ganaway is clearly inapposite to the present case, and does not support Mr. Cooper's argument. The Ga......
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...a trial court's determination regarding the relocation of one parent in the absence of an abuse of discretion. Ganaway v. Ganaway , 17-875 (La.App. 3 Cir. 2/28/18), 238 So.3d 540. Louisiana Revised Statutes 9:355.10 mandates that the parent who proposes relocation does so in good faith and ......