Noland v. Noland

• Decision Date: 26 April 2017
• Docket Number: 16–641
• Parties: Misty Luneau NOLAND v. Ryan Michael NOLAND
• Court: Court of Appeal of Louisiana — District of US

218 So.3d 215

Misty Luneau NOLAND

v.Ryan Michael NOLAND

16–641

Court of Appeal of Louisiana, Third Circuit.

April 26, 2017

Rehearing Denied June 7, 2017

Gregory N. Wampler, Lemoine & Wampler, 607 Main St., Pineville, LA 71360, (318) 473–4220, COUNSEL FOR PLAINTIFF/APPELLEE: Misty Luneau Noland

Michael H. Davis, Attorney at Law, 2017 MacArthur Drive, Building 4, Suite "A", Alexandria, LA 71301, COUNSEL FOR PLAINTIFF/APPELLEE: Misty Luneau Noland

Bradford H. Felder, G. Andrew Veazey, Huval, Veazey, Felder & Renegar, L.L.C., 2 Flagg Place, Lafayette, LA 70508, (337) 234–5350, COUNSEL FOR DEFENDANT/APPELLANT: Ryan Michael Noland

Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.

SAVOIE, Judge.

In this custody dispute, Ryan Noland appeals the trial court's judgment denying his motion for modification of custody. Misty Noland filed an answer to appeal in the trial court requesting certain restrictions placed on her in the judgment be removed.¹ For the reasons set forth herein, we affirm the judgment and decline to consider Misty Noland's Answer to Appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Ryan and Misty Noland were married on June 16, 2007. Of the marriage, two children were born—Conner on February 11, 2005, and Lillian on August 20, 2007. A Petition for Divorce, including a request for child custody and support, was filed on December 17, 2008. The petition designated Misty as the primary domiciliary custodian of the minor children with Ryan entitled to specific periods of custody.

On June 5, 2012, Misty filed a Rule for Modification of Child Support and Custody/Visitation and Contempt of Court that was tried on July 23, 2012. Written reasons and judgment were rendered on July 31, 2012. The trial court ordered a more specific visitation and custody schedule.

On July 15, 2015, Ryan, now remarried and living in Oklahoma, filed a Motion for Ex–Parte Custody and Modification of Custody, Visitation and Child Support. An ex-parte order granting custody of the children to Ryan was improperly signed which led to a sequence of events wherein Misty's mother, Dorothy Luneau, attempted to use the order to gain custody of the children. Misty then filed a Motion to Vacate the Ex–Parte Order which was granted on July 17, 2015 after a hearing on the matter. Ryan's original modification of custody was heard in December 2015 and February 2016 and culminated with days of testimony from twenty-seven witnesses and sixty-five exhibits. The trial court issued written reasons dated March 24, 2016, and judgment was signed May 2, 2016. The judgment denied Ryan's motion for modification of custody and ordered the following actions be taken by the parties:

(1) Misty is to submit to random drug screens at Louisiana Occupational Health Services, 3018 Jackson Street, Ste. 100, Alexandria, Louisiana, as follows:

a) Random and observed urine screens twice weekly for six (6) months from the date of this judgment, and then once weekly for the following six (6) months;

b) A hair follicle test once monthly for twelve (12) months from the date of this judgment; and

c) Misty is to execute a medical release form with Louisiana Occupational Health Services, 3018 Jackson Street, Ste. 100, Alexandria, Louisiana, authorizing all test results to be mailed to Thomas M. Yeager, District Judge, P.O. Box 1431, Alexandria, Louisiana 71309, or delivered to Judge Yeager by facsimile at 318.484.2704.

(2) Misty to undergo substance abuse and family counseling with Lydia Roy, 3921 Independence Boulevard, Ste. 101, Alexandria, Louisiana 71309 (Telephone: 318.528.8717), with the frequency and length of that counseling to be determined by Ms. Roy. Misty is to execute a medical release form with Ms. Roy, authorizing and directing Ms. Roy to provide a progress report every ninety (90) days, to be mailed to Thomas M. Yeager, District Judge, P.O. Box 1431, Alexandria, Louisiana, 71309, or delivered to Judge Yeager by facsimile at 318.484.2704.

(3) Misty is to continue treatment by Dr. Edwin Urbi, MD, 5920 Coliseum Boulevard, Alexandria, Louisiana, and to take all medications prescribed by Dr. Urbi.

(4) Misty is prohibited from consuming alcohol and from entering bars, lounges, and casinos and is not to consume any controlled dangerous substances (CDS) unless prescribed by a physician; however, prior to any such prescription being written, Misty is to notify the physician of her substance abuse addiction and request that the physician prescribed a non controlled substance, if possible.

(5) The minor children, Conner Michael Noland, born February 11, 2005, and Lillian Ryan Noland, born on August 20, 2007 (sometimes jointly hereafter "the children") are to have reasonable access to communicate with Ryan and that communication will not be censored nor monitored in any manner. Ryan is to have contact with the children by telephone, Skype, or Facetime at least four times a week, with Misty having the responsibility for placing the calls.

(6) Misty is not permitted to make or allow to be made, in the children's presence, any derogatory comments, directly or indirectly about Ryan, Lindsey Noland, or her mother, Dorothy Luneau.

(7) Misty is, with the assistance of her substance abuse and family counselor, to work on a plan to reestablish a relationship with her children and their grandparents.

(8) Misty is to have both children evaluated for ADHD and to follow any treatment recommendations or medication recommendations made by the evaluator.

(9) Both Misty and Ryan are to purchase services provided by Our Family Wizard at www.OurFamilyWizard.com or by calling 1.866.755.9991.

The trial court reserved its ruling on the issue of child support and all other motions filed by the parties. It is from this judgment that Ryan appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred when it applied the Bergeron standard rather than the Evans standard for modification of custody.

2. Regardless of whether the Bergeron or Evans standard applies, Ryan met the standard justifying a modification of custody, and the trial court erred when it failed to properly apply the Civil Code Article 134 factors and to name Ryan domiciliary parent and award Misty custodial periods appropriate for someone living approximately eight hours away from the primary custodian.

3. The trial court erred in considering the evidence of Lilly's educational improvement during the course of the litigation as paramount in its determination of custody. At the time Ryan filed his initial request for modification of custody on July 15, 2012, Lilly had failed the first grade and was repeating that grade after having repeated pre-kindergarten. Only after Ryan sought modification of custody, while Misty was under microscope, did Lilly allegedly improve with her school work. In other words, the trial court erred both in considering post-filing facts influenced by the ongoing litigation (and the involvement of Misty's father) and in its putting undue weight on only one of the twelve factors.

4. The trial court erred in holding that Ryan failed to meet his burden to modify the July 31, 2012 Judgment, but then modifying that judgment in an effort to reform Misty and protect the children from her with continued involvement and oversight of the trial court. In other words, the provisions that the trial court included in the judgment to reform Misty establish that Ryan did, in fact, meet his burden even if the Bergeron standard applies. Therefore, the trial court erred in establishing itself as a "safety monitor" for the children rather than placing the children with Ryan with whom there were no concerns for their safety.

5. Alternatively, the trial court erred when it failed to amend Ryan's custodial periods given that Ryan now lives eight hours away from Misty.

6. The trial court erred in sustaining Misty's objection to the introduction of a Facebook posting between she and her friend, Chad Hill.

7. The trial court erred when it sustained Misty's objection to the introduction of factual evidence not specifically pled in Ryan's pleadings.

8. The trial court erred when it cast each party with their own costs.

STANDARD OF REVIEW

"[A] trial court's determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion." Hawthorne v. Hawthorne , 96–89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625,writ denied , 96-1650 (La. 10/25/96), 681 So.2d 365.

In a child custody proceeding, the trial court must consider all factors relevant to the child's best interest. La.Civ.Code art. 134. Further,

[t]he court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court.

Thibodeaux v. O'Quain , 09-1266, p. 5 (La.App. 3 Cir. 3/24/10), 33 So.3d 1008, 1013 (quoting Cooper v. Cooper , 43,244 (La.App. 2 Cir. 3/12/08), 978 So.2d 1156 ).

DISCUSSION

I. Assignment of Error Number One—Bergeron v. Evans Standard of Review

The trial court found that the July 23, 2012 hearing on Misty's Rule for Modification of Child Support and Custody/Visitation, which resulted in a July 31, 2012 judgment, is a considered decree. "A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. By contrast, a judgment with a custody plan that was entered by default, was not contested or was merely entered by the consent of the parties, is not a considered decree." Evans v. Terrell , 27,615, p. 4 (La.App. 2 Cir. 12/6/95), 665 So.2d 648, 650, writ denied , 96-387 (La. 5/3/96), 672...