Katie Harrell Thibodaux v. Mindi Louise Thibodaux

STATE OF LOUISIANA

FIRST CIRCUIT

2024 CA 0948

If1-111: 1 T-11,131,101IM1094

VERSUS

Judgment Rendered: FEB 2 8 2025 \, I

On Appeal from the Seventeenth Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Docket No. 143936

Honorable F. Hugh Larose, Judge Presiding

Jeremy P. Robichaux Counsel for Plaintiff/Appellee
Thibodaux, Louisiana Katie Harrell Thibodaux

Nicole D. Streva Counsel for Defendant/ Appellant
Morgan City, Louisiana Mindi Louise Thibodaux

BEFORE: McCLENDON., C.J., LANIER AND BALFOUR, 33.

McCLENDON,, C.3.

At issue in this appeal is whether the trial court erred in finding the appellant failed

to state a cause of action under LSA- R. S. 9: 355. 1, et seq. For the reasons that follow, we

reverse in part and remand.

Katie Harrell Thibodaux and Mindi Louise Thibodaux were married on December

18, 2015. During the marriage, the parties legally adopted two children: Hugh, born

October 21, 2015, and Harper, born August 6, 2016. On December 14, 2021, Katie filed

a petition seeking a divorce and the determination of incidental matters, including custody

of the two minor children. Mindi answered the petition on December 22, 2021.

On June 24, 2022, the parties resolved the matter of custody pursuant to a court -

approved consent judgment. The parties stipulated to joint custody of the children, with

Katie designated as the domiciliary parent. Regarding the physical custody schedule, the

June 24, 2022 consent judgment provided that during the school year, Mindi would have

physical custody every other weekend, from school pickup on Friday afternoon until

school resumed on Monday morning, and three consecutive weeknights if she was on

vacation from work for the week; during the summer, the parties would alternate custody

weekly; and for holidays, the parties would alternate and split custody according to the
school schedule.' The June 24, 2022 consent judgment further provided that Mindi would

pay Katie child support; that each party would allow the other reasonable communication

with the minor children; and that the minor children' s " electronics/ tablets [ would] follow

the children wherever the children may be."

On January 6, 2023, Katie filed a petition for protection from abuse pursuant to

LSA- R. S. 46: 2131, etseq., on her own behalf and on behalf of the minor children, against

Mindi. The trial court issued a temporary protective order ( TRO) as requested, effective

through January 30, 2023. While the TRO was in effect, on January 19, 2023, Katie filed

I The June 24, 2022 consent judgment provided that the parties were awarded joint custody of their minor
child, but referred to the parties' physical custodial time as " visitation privileges[.]" " Visitation," as provided
for in LSA- C.C. art. 136, applies only when a parent does not have custody or joint custody. The time that
parents with joint legal custody share with their children is more properly described as physical custody
allocation of a joint custody plan, rather than as visitation. LSA- R.S. 9: 335; Lewis v. Marcotte, 2021-
0432 ( La. App. I Cir. 12/ 22/ 21), 339 So. 3d 1189, 1191 n. 2; see Evans v. Lungrin, 97- 0541 ( La. 2/ 6/ 98),
708 So. 2d 731, 737.

2

a motion to modify custody, seeking sole custody of the minor children on the grounds

alleged in her petition for protection. The January 30, 2023 hearing of Katie' s petition for

protection was rescheduled to February 27, 2023. Ultimately, both Katie' s petition for

protection and motion to modify custody were dismissed. 2

The trial court signed a judgment rendering a final divorce between Katie and

Mindi on February 27, 2023.

On November 20, 2023, Mindi filed a single pleading which set forth a motion for

contempt, expenses, and return of the minor children, together with a motion for

modification of custody and child support ( motion for contempt and motion to modify

custody). Regarding the motion for contempt, expenses, and return of the minor children,

Mindi alleged that Katie relocated the minor children' s principal residence more than 75

miles from their former principal residence, without complying with the requirements set

forth in Louisiana' s child relocation statutes, LSA- R. S. 9: 355. 1, et seq. ( relocation

statutes). Specifically, Mindi alleged that Katie moved the minor children from 1903 St.

Bernard Street, Thibodaux, Louisiana, to 686 Chevreuil Street, Mandeville, Louisiana, a

distance of ninety-two miles, without providing Mindi with statutorily -required notice and

without obtaining either Mindi' s consent or court approval. Mindi further alleged that

Katie's relocation was impeding her ability to exercise her physical custody periods,

because she was unable to pick the children up from school on Friday afternoons or return

them to school on Monday mornings, " as it is an hour and a half away from Thibodaux."

With respect to the motion to modify custody, Mindi alleged that after Katie

relocated the minor children without Mindi' s consent, Katie refused to bring the minor

children to Mindi to facilitate custody exchanges. Rather, Katie insisted that Mindi pick

the minor children up in Mandeville. Mindi additionally alleged that Katie interfered with

Mindi's communications with the minor children; exposed the minor children to the

parties' legal issues; refused to send the minor children' s electronics/ tablets during Mindi' s
physical custody periods as agreed in the consent judgment; and refused to send

I Mindi filed a peremptory exception pleading the objection of no cause of action on February 8, 2023, and
the trial court dismissed Katie's petition for protection with prejudice on February 10, 2023. Katie filed an
unopposed motion to dismiss her motion to modify custody on February 22, 2023, and the trial court signed
the motion to dismiss on February 27, 2023.

K

sufficient amounts of one of the children' s necessary medication for Mindi' s physical

custody periods. Thus, Mindi contended that a modification of the June 24, 2022 consent

judgment was warranted. She requested that the trial court designate her as the

domiciliary parent, grant Katie physical custody every other weekend during the school

year, grant Katie equal custody during holidays and the summer, and modify child support

accordingly.

Mindi' s motion for contempt and motion to modify custody were originally set for

hearing on January 11, 2024. The day before the hearing, Katie filed a motion to continue

the hearing in order to allow her newly -enrolled counsel to prepare, which Mindi

opposed. 3 The trial court continued the hearing to March 6, 2024. However, during the

January 11, 2024 court date, the parties entered into a temporary order and consent

judgment, which provided that Katie would bring the minor children to Mindi for her

alternating custodial weekends on Fridays at 6: 00 p. m. and pick them up on Sundays at

6: 00 p. m., until the hearing.

On February 22, 2024, Katie filed a peremptory exception pleading the objection

of no cause of action. 4 Katie alleged that Mindi had failed to allege a cause of action as

to her motion for contempt because the relocation statutes apply only when the " straight
line or radial distance" ( radial distance) between the former residence and the proposed

new residence exceeds 75 miles, and the radial distance between the two locations at

issue in this matter was only 63.6 miles. Thus, Katie argued the relocation statutes did

not apply. Katie further contended that Mindi had failed to state a cause of action with

respect to her motion to modify custody, because Mindi did not explicitly allege that the
proposed modification was in the best interests of the minor children, but rather, " infers

that the modification is warranted due to [ Katie's] alleged violation of the relocation

statute[ s]." Finally, Katie requested that the trial court impose sanctions on Mindi

3 Katie has been represented by numerous attorneys during these proceedings. Paul J. Barker filed the
petition for divorce; Benjamin Comeaux filed Katie's motion to modify custody; Benjamin Comeaux and
Paul J. Barker then withdrew, and Patricia Reeves Floyd enrolled as counsel for Katie in January and
February of 2023; and Jeremy Robichaux enrolled in January 2024.
4 Louisiana Code of Civil Procedure article 922 recognizes only three exceptions: the declinatory exception,
the dilatory exception, and the peremptory exception. In this case, a peremptory exception pleading the
objection of no cause of action is at issue. See LSA- C. C. P. art. 927. Herein, for brevity, we refer to that
exception as an exception of no cause of action.

El

pursuant to the relocation statutes, specifically LSA- R.S. 9: 355. 19, contending that

Mindi' s argument was " frivolous" and needlessly increased the cost of litigation. Katie' s

exception was accompanied by two documents marked as exhibits: Exhibit A, a printed

Google map reflecting that the radial distance between the minor children' s former

principal residence, 1903 St. Bernard Street, Thibodaux, and the minor children' s present

principal residence, 686 Chevreuil Street, Mandeville, was 63. 6 miles; and Exhibit B, a

printed Google map reflecting that the radial distance between Mindi' s present address,

619 Barataria Street, Lockport, and the minor children' s present principal residence, 686

Chevreuil Street, Mandeville, was 58. 98 miles.

Mindi filed a memorandum in opposition to Katie's exception pleading the objection

of no cause of action. Mindi argued that the relocation statutes apply when the distance

between the former residence and the proposed new residence exceeds 75 miles when

measured by road miles, and the " actual driving distance" between the two locations at

issue in this matter was at least 91. 8 miles. Mindi further argued that she had shown a

material change in circumstances since the June 24, 2022 consent judgment was entered,

because Katie had violated the provisions of the relocation statutes; unlawfully interfered

with Mindi' s ability to exercise her physical custody with the minor children; and inflicted

severe emotional distress on the minor children. Mindi' s opposition was accompanied by

a printed Google map reflecting that the distance between the minor children' s former

principal residence at 1903 St. Bernard Street, Thibodaux, and their present principal

residence at 686 Chevreuil Street, Mandeville, was 91. 8 miles via US -90 East and the

Lake Ponchartrain Causeway; 109 miles via 1- 55 North and 1- 12 East; and 117 miles via

US -90 East and I- 10 East. Katie filed a memorandum in reply to Mindi' s opposition, which

primarily re -argued the points she previously made in her exception of no cause of action.

Mindi' s motion for contempt and motion to modify custody came for hearing on

March 6, 2024. At the conclusion of the hearing, the trial court found that Katie did not

breach the relocation statutes and granted Katie's exception of no cause of action.

5

The judgment now before this court on appeals provides, in pertinent part:

IT IS HEREBY ORDERED that the Exception of No Cause of Action
filed by Katie Harrell Thibodaux is hereby granted based upon the Court
finding that Katie Harrell Thibodaux did not breach the relocation statute
LSA- R. S. 9: 355. 1, etSeq.]).

IT IS HEREBY FURTHER ORDERED that [ the] request for
sanctions filed by Katie Harrell Thibodaux is hereby denied.

IT IS HEREBY FURTHER ORDERED that the Motion to Modify
Custody and Contempt filed by Mindi Louise Thibodaux is hereby dismissed.

On appeal, Mindi has designated two assignments of error: that the trial court erred in

granting Katie' s exception of no cause of action in finding that the 75 -mile rule is

measured in radial miles, and that the trial court erred in not hearing Mindi' s motion for

contempt and to modify custody and child support.

LAW AND DISCUSSION

The purpose of an exception raising the objection of no cause of action is to

determine the sufficiency in law of the petition by determining whether the law affords a

remedy on the facts alleged in the pleading. Dodson & Hooks, APLC v. Louisiana

Community Development Capital Fund, Inc. "Capfund", 2019- 1516 ( La. App. 1 Cir.

12/ 30/ 20), 318 So. 3d 939, 944; see LSA- C. C. P. arts. 927 and 931. The exception of no

cause of action is triable only on the face of the petition and any attached documentation,

and no evidence may be introduced to support or controvert the objection. 6 Midland

Funding LLC v. Welch, 2022- 0823 ( La. App. 1 Cir. 2/ 24/ 23), 361 So. 3d 1022, 1026;

LSA- C. C. P. art. 931. The pertinent question is whether, in the light most favorable to the

plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid

cause of action for relief. Every reasonable interpretation must be accorded the language

5 This appeal was originally taken from the trial court's written judgment signed on April 8, 2024. On
December 12, 2024, this court, ex proprio mote, issued an interim order finding an apparent decretal
language defect in the trial court's April 8, 2024 judgment. Thus, we remanded the matter to the trial court
for the limited purpose of instructing the trial court to sign an amended judgment to correct the deficiencies
and comply with LSA- C. C. P. art. 1918, and to supplement the appellate record with the amended judgment.
On January 28, 2025, the appellate record was supplemented with an amended judgment dated January
6, 2025. After supplementation of the January 6, 2025 judgment, we maintained the appeal. The language
quoted herein is found in the January 6, 2025 judgment.
6 Louisiana jurisprudence recognizes an exception to the rule against the admission of evidence to support
or controvert an exception of no cause of action—when evidence is admitted without objection, it may be
considered by the court as enlarging the pleadings. Beern v. Beern, 2020- 0897 ( La. App. 1 Cir. 4/ 20/ 21),
324 So. 3d 682, 686. However, the transcript from the hearing on Katie' s exception does not reflect the
admission of any evidence at the hearing. See Midland, 361 So. 3d at 1027 n. 5.

0

used in the petition in favor of maintaining its sufficiency and affording the plaintiff the

opportunity of presenting evidence at trial. State ex rel. Tureau v. BEPCO,, L.P., 2021-

0856 ( La. 10/ 21/ 22), 351 So. 3d 297, 310. The burden of demonstrating that a petition

fails to state a cause of action is on the exceptor. Midland, 361 So. 3d at 1026. Appellate

review is de novo. Kendrick v. Estate of Barre, 2021- 00993 ( La. 3/ 25/ 22), 339 So. 3d

615, 617.

As noted above, the relocation statutes that govern the relocation of a child' s

principal residence are codified in LSA- R. S. 9: 355. 1, etseq. The relocation statutes apply

if there is a court order awarding custody and there is an intent to establish the principal

residence of a child at any location within the state that is at a distance of more than 75

miles from the principal residence of the child at the time that the most recent custody

decree was rendered.' LSA- R. S. 9: 355. 2( 6)( 3); State v. Titus, 2018- 1511 ( La.App. 1

Cir. 2/ 28/ 19), 274 So. 3d 591, 597. Pursuant to LSA- R.S. 9: 355. 4, the party proposing

relocation of a child' s principal residence " shall notify any person recognized as a parent

and any other person awarded custody or visitation under a court decree as required by

LSA-] R. S. 9: 355. 5[ J" which in turn provides that notice of a proposed relocation of the

principal residence of a child " shall be given by registered or certified mail, return receipt

requested, or delivered by commercial courier as defined in [ LSA-] R.S. 13: 3204( D)" prior

to the relocation. The court may consider a failure to provide notice of a proposed

relocation of a child as: ( 1) a factor in making its determination regarding the relocation

of a child; ( 2) a basis for ordering the return of the child if the relocation has taken place

without notice or court authorization; and ( 3) sufficient cause to order the person

proposing relocation to pay reasonable expenses incurred by the person objecting to the
relocation. LSA- R. S. 9: 355. 6. Moreover, pursuant to LSA- R. S. 9: 355. 17, relocation

without prior notice when there is a court order awarding custody **'may constitute a

change of circumstances warranting a modification of custody[,]" and "[ a] ny change in

the principal residence of a child, including one not meeting the threshold distance set

7 The provisions of the relocation statutes do not apply to proposed relocations within the state and within
distances shorter than 75 miles, nor do they apply if there is an express written agreement for the
relocation. See LSA- R. S. 9: 355. 2( D)( 1); 2012 Revision Comment ( c).

N

out in [ LSA-] R. S. 9: 355. 2, may constitute a change of circumstances warranting a

modification of custody."

In this matter, Mindi' s motion for contempt and motion to modify custody

specifically alleged that, at the time the June 24, 2022 consent judgment was rendered,

Katie resided with the minor children at 1903 St. Bernard Street, Thibodaux; that Katie

had since relocated " her and the children' s primary residence to 686 Chevreuil Street,

Mandeville"; that the distance between the two locations was " more than 75 miles"; that

Katie informed Mindi of her intent to relocate by email only, and did not provide Mindi

with notice by registered mail, certified mail, or commercial courier prior to the proposed

relocation; and that Katie did not obtain Mindi' s consent or the court's approval prior to

the relocation.

Having conducted a thorough de novo review of the matter before us, and

presuming all of Mindi's well -pleaded facts are true and resolving all doubts in Mindi' s

favor, it is clear that Mindi alleged sufficient facts to plead a cause of action for violation

of the relocation statutes; a cause of action for an order directing Katie to return the

minor children and to pay Mindi' s reasonable expenses incurred in objecting to the

relocation pursuant to LSA- R.S. 9: 355. 6; and a cause of action for modification of custody
pursuant to LSA- R. S. 9: 355. 17. Accordingly, the trial court erred in granting Katie' s
exception of no cause of action.

At the hearing of the exception of no cause of action, the trial court found that

miles"
as contemplated in the relocation statutes should be measured using radial

distances as opposed to roadway distances. In granting Katie's exception of no cause of
action, the trial court further had to accept Katie' s representation that the radial distance

between the former residence and the new residence did not exceed 75 miles.8 However,

8 Of note is this court's prior ruling in State v. Titus, 20181511 ( La. App. 1 Cir. 2/ 28/ 19), 274 So. 3d 591.
In Titus, the family court denied the mother's request to relocate the minor children. The mother
filed a motion for new trial on the grounds of ineffective assistance of counsel and newly discovered
evidence and claims. Specifically, the mother relied on her post -trial discovery of Holley v. Holley, 2017-
325 ( La. App. 5th Cir. 11/ 20/ 17), 232 So. 3d 717, 727, in which the Fifth Circuit held that the appropriate
method used to measure " miles" under the relocation statutes is by radial miles, or " as the crow flies,"
rather than by surface or road miles. The family court in Titus denied the mother's motion for new trial
with reasons, which this court then cited as follows:

The mode of transportation in the mode[ rn] world is by automobile, not boat, plane,
helicopter, or some sort of aerocar reminiscent of 'The Jetsons' television show. The only
practical and economical way of traveling between places is in an automobile and by using

E:

the consideration of anything beyond the allegations of the petition and any attachments

thereto is improper on an exception of no cause of action. Midland, 361 So. 3d at 1027.

Here, no documents were annexed to Mindi' s motion for contempt and motion to modify

custody, and no evidence was introduced at the hearing of this matter. Thus, the trial
court's consideration of Katie's exception of no cause of action was strictly limited to the

face of Mindi' s motion for contempt and motion to modify custody, which explicitly alleged

that Katie relocated " more than 75 miles away[.]" Mindi' s motion for contempt and motion

to modify custody did not make any reference as to whether the distance was in radial

or road miles. Consequently, the issue of whether the relocation statutes contemplate a

threshold of 75 radial miles or 75 road miles was not before the trial court on Katie's

exception of no cause of action, and the trial court exceeded its limited scope in

addressing the merits. See Midland, 361 So. 3d at 1027. Accordingly, we reverse the trial

court's judgment that granted Katie' s exception of no cause of action and dismissed

Mindi' s motion for contempt and motion to modify custody.

Finally, having found that Mindi alleged a cause of action for violation of the

relocation statutes and for modification of custody, we agree with Mindi' s argument that

the trial court erred in dismissing Mindi' s motion for contempt and motion to modify child

support, and failing to hold a hearing on same.

CONCLUSION

For the foregoing reasons, we reverse those portions of the trial courts April 8,

2024 and January 6, 2025 judgments that granted Katie Harrell Thibodaux's exception

pleading the objection of no cause of action, dismissed Mindi Louise Thibodaux' s motion

for contempt, expenses, and return of the minor children, and dismissed Mindi Louise

surface roads. Using any other method to calculate the distance would lead to absurd
consequences. Flying in a plane, helicopter or aerocar directly from the old residence to
the new residence would be impractical, as it would be by boat. Additionally, it would be
impossible in Louisiana to walk in a straight line from one residence to the other without
either being stopped by a marsh or body of water or without trespassing on private
property. This Court is not bound by the ruling in [ Holley] and the use of road miles is
clearly not contrary to the law.
Titus, 274 So. 3d at 598- 599. Finding that the mother had not proven she was entitled to a new trial on
any of the grounds she alleged, this court affirmed the family court's judgment, writing, " After thoroughly
reviewing the record herein, we agree with the reasons assigned by the family court and find no
abuse of the family court's discretion in denying [ the mother's] motion for new trial." Titus, 274 So. 3d at
599 ( emphasis added).

VC

Thibodaux's motion for modification of custody and child support. We remand this matter

for further proceedings consistent with this opinion.

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