Opinion
NO. 18-C-596
12-20-2018
VICKI C. WALKER v. STEFANIE K. ZACHARIAS
Susan Buchholz First Deputy Clerk IN RE STEFANIE K. ZACHARIAS APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE M. LAUREN LEMMON, DIVISION "D", NUMBER 84,755 Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
WRIT GRANTED IN PART; DENIED IN PART; V.W. GRANTED FIFTEEN DAYS LEAVE OF COURT TO AMEND
In this writ application, relator seeks review of the district court's September 20, 2018 decision denying relator's exceptions of no cause of action and no right of action. Relator, S.Z., is the mother of a minor child, M.C. Respondent, V.W., the paternal grandmother of the child, has temporary custody of the child and is seeking full custody.
On June 14, 2018, V.W. (the "grandmother") filed a petition for custody and ex parte order of custody against S.Z. (the "mother") in which she alleged that S.Z. and the child's father (A.C.) were married and had a child, M.C. She further alleged the mother and the father executed a "custody by mandate" in her favor while they both were deployed as active duty members in the United States armed services. V.W. filed the underlying petition alleging the minor child was in danger as a result of the actions of S.Z. and that "immediate and irreparable injury [...] would result to the minor child" if the child remained in S.Z.'s care. In furtherance of her claim, V.W. alleged S.Z. has a history of intoxication and has been charged with domestic abuse, child endangerment, and simple battery.
The mother has since revoked this mandate. At the September 20, 2018 hearing, S.Z. testified that she was no longer an active duty member of the armed services and V.W.'s attorney stated that the father would be retiring within ten months.
Discussion
The appellate court's standard of review is de novo for both an exception of no cause of action and an exception of no right of action. Tr. v. Schwegmann v. Schwegmann Family Tr., 09-968 (La. App. 5 Cir. 9/14/10), 51 So. 3d 737; Wells v. Fandal, 13-620 (La. App. 5 Cir. 2/12/14), 136 So. 3d 83. For the following reasons, we grant this writ application as to the exception of no cause of action, but deny it as to the exception of no right of action.
Exception of No Cause of Action
In this exception, the mother argues that V.W. does not state a cause action for child custody by a non-parent under La. C.C. Art. 133. The court based its findings on the allegations that V.W. does not allege that an award of joint custody or of sole custody to either parent would result in substantial harm to the child. The mother argues that because the father was not made a party to the litigation and V.W. does not allege that an award of custody to the child's father would be harmful to the child, V.W.'s petition should be dismissed.
In the petition for custody, V.W. alleges that the minor child's father lives out of the state and is stationed in Georgia, and that he is due to retire from the military in the coming year and intends to return to Louisiana. Finally, V.W. alleges that her son "agrees that it is in the best interest of the minor child to be in the custody of the paternal grandmother as the child has been domiciled in St. Charles Parish by the consent of all parties."
In denying the exception of no cause of action, the district court found the allegations sufficient to state a cause of action under La. C.C. art. 133, based on the allegations that the mom is unfit, that the dad is moving around the country, and that the grandmother has been caring for the child.
Upon review of the petition for custody and for the following reasons, we find that the trial court erred in denying the mother's exception of no cause of action. The function of an exception of no cause of action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleadings. Gereighty v. Domingue, 17-339 (La. App. 5 Cir. 5/30/18); 249 So.3d 1016, 1026 (citations omitted). La. C.C. art. 133 states:
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.Under this article, a non-parent seeking custody of a minor must show that an award of joint or sole custody to either parent would result in substantial harm to the child. We interpret this to mean that the non-parent must allege in the petition for custody that neither parent is capable of caring for the minor child without the child experiencing substantial harm. Therefore, a non-parent may properly assert a cause of action for custody by making allegations that a minor child will experience substantial harm if he or she is placed in the custody of either the mother or the father. Substantial harm under La. C.C. art. 133 includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include any other circumstances that would cause the child to suffer substantial harm. Ramirez v. Ramirez, 13-166 (La. App. 5 Cir. 8/27/13), 124 So.3d 8.
In the present case, although the petition alleges that the minor child will suffer substantial harm if he is placed in the custody of his mother, the petition does not contain any allegations that substantial harm would result if he were placed in his father's custody. Therefore, we find the district court erred in overruling the mother's exception of no cause of action.
We do not opine on the district judge's finding that allegations that the minor child's father is a member of the armed services who often relocates is sufficient proof that the minor child will experience substantial harm. --------
Exception of No Right of Action
In support of her exception of no right of action, the mother argues that V.W. is not a member of the class of people entitled to file for custody under La. C.C. art. 133 because she does not claim that awarding custody to the father would result in substantial harm. The district court overruled the exception of no right of action on the same grounds as its denial of the exception of no cause of action.
The peremptory exception of no right of action challenges whether a plaintiff has an actual interest or right to assert a cause of action. In re Melancon, 10-1463 (La. App. 1 Cir. 12/22/10), 62 So.3d 759. Under La. C.C. art. 133, any person with whom the child has been living in a wholesome and stable environment, or any other person able to provide an adequate and stable environment may assert a cause of action.
V.W.'s petition asserts that the minor child has resided with her for at least one and one-half years and that the minor child currently resides with her as a result of an order of temporary custody issued June 21, 2018. Therefore, we find that V.W. is a member of the class of people entitled to seek custody as a non-parent under La. C.C. art. 133. Consequently, we find the district court did not err in overruling the exception of no right of action.
Conclusion
For the foregoing reasons, we deny this writ application as to the district court's denial of the mother's exception of no right of action. We, however, grant this writ application, in part, as to the denial of the mother's exception of no cause of action, and grant respondent fifteen days leave of court to amend her petition.
Gretna, Louisiana, this 20th day of December, 2018.
SJW
HJL
WICKER, J., CONCURS WITH REASONS
While I agree with the majority opinion regarding the issues of no right and no cause of action, I would remand this matter to the district court to hold a contradictory hearing to decide whether it would be in the minor child's best interest for the district court to appoint an attorney to represent the child individually.
In this case, the paternal grandmother was initially entrusted by "mandate of custody" with the care of her minor grandson by consent of his mother and father who were deployed as active duty members of the United States armed services. When the mother returned from active duty, she revoked the mandate of custody and began caring for her minor child. It was only after the minor child's residency with his paternal grandmother ended that his grandmother began making accusations of neglect and harm to the minor child at the hands of his mother. Specifically, the child's paternal grandmother alleged that the minor child's mother had "charges pending" in St. Charles Parish for driving while intoxicated, domestic abuse, child endangerment, and simple battery. The paternal grandmother's past interactions with the minor child's biological mother have resulted in a temporary restraining order being issued against the biological mother in favor of the child's paternal grandmother. The paternal grandmother has also alleged that under her care, the minor child has been enrolled in a school in which he receives special services as a result of diagnosed learning disabilities. The trial court took notice of the situation before it and stated:
... the way I look at this is both parents are coming close to the end of their military, and so they're lining everything up to get ready to get in a big 'ole battle, loading their guns, so to speak, and, and I understand it, but we've got this four-year-old, who needs a mom and needs a dad and needs grandparents and a lot of love. [sic]Louisiana Revised Statute 9:345(A) states:
In any child custody or visitation proceeding, the court, upon its own motion, upon motion of any parent or party, or upon motion of the child, may appoint an attorney to represent the child if, after a contradictory hearing, the court determines such appointment would be in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) Whether the child custody or visitation proceeding is exceptionally intense or protracted.
(2) Whether an attorney representing the child could provide the court with significant information not otherwise readily available or likely to be presented to the court.
(3) Whether there exists a possibility that neither parent is capable of providing an adequate and stable environment for the child.
(4) Whether the interests of the child and those of either parent, or of another party to the proceeding, conflict.
(5) Any other factor relevant in determining the best interest of the child.
Given the genesis of the original custody mandate, the subsequent timing of the paternal grandmother's allegations against the biological mother and the severity of these allegations and in light of the R.S. 9:345(A) grant of authority to the court to act on its own motion, I am of the opinion that this Court should remand this matter to the district court to hold a contradictory hearing to determine whether the child's best interest is best served by appointment of counsel to represent the child individually and if so, to make said appointment.
FHW