Garcia v. Hernandez
| Decision Date | 11 April 2022 |
| Docket Number | 21-CA-338 |
| Parties | Irrael GARCIA v. Jaidy HERNANDEZ |
| Court | Court of Appeal of Louisiana — District of US |
COUNSEL FOR PLAINTIFF/APPELLANT, IRRAEL GARCIA, M. Molly MacKenzie
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
Plaintiff-appellant, Irrael Garcia, appeals the district court's judgment awarding Mr. Garcia and defendant-appellee, Jaidy Hernandez, joint custody of their minor child, and Ms. Hernandez unsupervised physical custody of the child for certain specified periods of time. For the following reasons, we vacate the domestic commissioner's February 1, 2021 interim judgment and the district court's March 11, 2021 judgment and reinstate the domestic commissioner's November 8, 2018 judgment.1 We remand this case to the district court to reset the motion to modify custody before the domestic commissioner.
This appeal involves the custody of the minor child, A.G., born to Mr. Garcia and Ms. Hernandez in 2016. Mr. Garcia and Ms. Hernandez were never married but lived together until they permanently separated in April 2017.
On January 25, 2018, Mr. Garcia filed a petition against Ms. Hernandez seeking sole custody of the child and requesting that Ms. Hernandez have supervised visitation provided she completed a domestic abuse intervention program in accordance with the Post-Separation Family Violence Relief Act. In response, Ms. Hernandez filed a petition seeking frequent and liberal visitation for herself and to be named as the domiciliary parent of the child.
After a two-day hearing, the domestic commissioner rendered judgment dated November 8, 2018, granting Mr. Garcia temporary sole custody of the child and Ms. Hernandez supervised visitation conditioned upon her completing a 26-week domestic abuse intervention program and refraining from use of alcohol and illegal drugs. In the November 8, 2018 judgment, the domestic commissioner found a history of family violence, and that Ms. Hernandez had perpetrated more than one incident of family violence on Mr. Garcia. Having taken all matters under advisement, he issued a permanent injunction prohibiting Ms. Hernandez from abusing or harassing Mr. Garcia.
Thirteen months later, on December 13, 2019, Ms. Hernandez filed a rule for modification of custody, asserting that there was a change in circumstances warranting modification of the custody schedule set forth in the November 8, 2018 judgment.
She sought a joint custody order with the parties sharing equal periods of physical custody of the child. Ms. Hernandez asserted that she had completed the domestic abuse intervention program, refrained from drug and alcohol use, and paid court costs, as required by the November 8, 2018 judgment.2 She did not allege that the judgment's custody and visitation provisions were so deleterious to the child as to justify a modification of the custody decree, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child, as required by Bergeron, infra. Because of the circumstances created by COVID-19, the hearing on Ms. Hernandez's rule was delayed multiple times.
On November 24, 2020, the rule for modification of custody was set for hearing on January 25, 2021. Mr. Garcia, however, was not served with notice of the January 25, 2021 hearing date until January 22, 2021 at 6:00 P.M., the Friday evening preceding the Monday morning hearing. A private process server appointed pursuant to La. C.C.P. art. 1293 served Mr. Garcia via domiciliary service on his "live-in girlfriend." Mr. Garcia has limited English proficiency, and required translation assistance to understand the notice and nature of the hearing. He was unable to attend the hearing because he was unable to obtain the day off from work on such short notice. Despite the record reflecting that Mr. Garcia had been served after business hours on the Friday evening preceding the Monday morning hearing, the domestic commissioner conducted the hearing without Mr. Garcia present on January 25, 2021.
At the start of the hearing, the domestic commissioner questioned the sufficiency of the service on Mr. Garcia, but only as to Mr. Garcia having been served through his live-in girlfriend, and not relative to the date and insufficient notice of that service. Ms. Hernandez was the only witness to testify, and the transcript reflects that her testimony was not extensive. Ms. Hernandez testified that she had completed the domestic abuse intervention program; that she had not seen the minor child in two years; that she had a newborn and was living with her domestic partner who worked while she cared for their newborn; and that the child would have a place to sleep.
The only mention of Mr. Garcia was when Ms. Hernandez's counsel asked, "Would you be willing to cooperate and co-parent with the father of the child for the benefit of the child?" In response, Ms. Hernandez stated, Ms. Hernandez's counsel then asked her, "So you would foster the relationship of your daughter with her father?" Ms. Hernandez replied,
At the conclusion of the hearing, the domestic commissioner granted the modification, ordering joint custody of the child with immediate unsupervised custodial periods for Ms. Hernandez. The domestic commissioner's interim judgment was signed on February 1, 2021, and Mr. Garcia objected to it timely. Mr. Garcia also filed a motion for emergency stay of the domestic commissioner's interim judgment, which was granted.
On March 11, 2021, the district court held a hearing on Mr. Garcia's objection. At the beginning of the hearing, Mr. Garcia's counsel stated to the court, "I assume that Ms. Hernandez would like to put on her case in chief since it is a Motion to Modify and this would be a trial de novo ." The trial judge responded, "we're here today for you," referring to Mr. Garcia's objection, "[s]o put your case on." At this point, Mr. Garcia proceeded with his case in chief and testified before the court. Mr. Garcia testified regarding the initial 2018 custody order and Ms. Hernandez's lack of interaction with the child since that order. Mr. Garcia indicated that he thought Ms. Hernandez should still be limited to supervised visitation to protect his daughter.
After Mr. Garcia finished with his case in chief, the trial judge asked Ms. Hernandez if she "ha[d] anything." Ms. Hernandez's counsel stated, "You know, judge -- it's not going to carry a burden because the guy said he thinks that she needs supervised visitation but no real facts elicited today to overturn the Commissioner's ruling- I mean nothing." Ms. Hernandez did not put on any witness testimony or present any evidence.
Mr. Garcia's counsel argued to the district court that the Commissioner's ruling was completely contrary to the Post Separation Family Violence Relief Act because it failed to consider that the child's last interaction with Ms. Hernandez was two and a half years ago, the need for therapy and a transitional visitation schedule, or that the Act prohibits an abusive parent from being granted sole or joint custody of a child. Mr. Garcia's counsel further argued that the hearing should be de novo , and that the burden of proof remained on Ms. Hernandez, stating "Your Honor, we do not have the burden in this case, it is a [trial] de novo," to which the district court judge responded, Nevertheless, it is clear from the record that the burden of proof was shifted to Mr. Garcia to show why Ms. Hernandez's motion to modify a considered custody decree should not be granted.
After the hearing, the district court upheld the domestic commissioner's interim judgment modifying custody on the basis that Mr. Garcia did not show "sufficient evidence to support the objection and prove why the domestic commissioner's judgment of February 1, 2021, should be overruled." This appeal followed.
On appeal, Mr. Garcia asserts the district court erred in: (1) failing to conduct a de novo review of the case, and improperly shifting the burden of proof from Ms. Hernandez, the party seeking to modify custody, to the objecting party, Mr. Garcia; (2) maintaining the domestic commissioner's judgment when Mr. Garcia was not given adequate notice and a meaningful opportunity to participate in the custody modification hearing before the domestic commissioner; and (3) failing to properly apply the Post-Separation Family Violence Relief Act when considering Ms. Hernandez's motion to modify custody.
In assignment of error number two, Mr. Garcia asserts the domestic commissioner committed reversible error in conducting the hearing when he was not given adequate notice or a meaningful opportunity to prepare and participate in the hearing. We agree.
The law provides that the failure to provide adequate notice implicates a procedural due process concern. Clofer v. August, 14-74 (La. App. 3 Cir. 6/4/14), 139 So.3d 1245, 1248 ; Flemming v. Flemming, 13-22, p. 8 (La. App. 3 Cir. 6/5/13), 114 So.3d 1285, 1290, writ denied, 13-1624 (La. 11/15/13), 125 So.3d 1108. Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances."
Fairbanks v. Beninate, 20-206 p. 23 (La. App. 5 Cir. 12/23/20), 308 So.3d 1222, 1232. Persons whose rights may be affected by state action are entitled to be heard, and, in order that they may enjoy that right, they must first be notified. Equally fundamental to the right to notice and an opportunity to be heard is that notice must be provided at a meaningful time and in a meaningful manner. In re. A.J.F., 00-948 (La. 6/30/00), ...
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