Jeremy Baker v. Krystle Lowe

STATE OF LOUISIANA

FIRST CIRCUIT

4!
NO. 2026 CU 0593
NO. 2026 CW 0212

JEREMY BAKER

VERSUSVERSUS

RYSTLERYSTLE LOWELOWE

OCTOCT 00 22 20262026
JUDGMENTJUDGMENT RENDERED:RENDERED:

TheThe FamilyFamily Court,Court,
InIn andand forfor thethe ParishParish ofof EastEast BatonBaton RougeRouge
StateState ofof LouisianaLouisiana
DocketDocket No.No. F240593,F240593, DivisionDivision CC

Honorable Honorable Charlene Charlene C.C. Day,Day, JudgeJudge PresidingPresiding

BrettBrett L.L. BajonBajon CounselCounsel forfor PlaintiffPlaintiff
- -Appellee,Appellee,
Graham Graham E.E. PeavyPeavy JeremyJeremy BakerBaker
CharlesCharles G.G. BlaizeBlaize
BatonBaton Rouge,Rouge, LouisianaLouisiana

ElizabethElizabeth K.K. FoxFox CounselCounsel forfor DefendantDefendant
- - Appellant,Appellant,
Springfield,Springfield, LouisianaLouisiana KrystleKrystle LoweLowe
andand

RobinRobin V.V. CazayouxCazayoux
BatonBaton Rouge,Rouge, LouisianaLouisiana

BEFORE:BEFORE: WOLFE,WOLFE, STROMBERG,STROMBERG, ANDAND BALFOUR,BALFOUR, JJ.JJ.

BALFOUR, J.

Krystle Lowe appeals a January 15, 2026 judgment awarding Jeremy Baker

visitation of a minor child born to Lowe (" the minor child"). This judgment was

entered pursuant to La. C. C. arts. 133 and 136. Lowe also has before this Court a

writ application that challenges the January 15, 2026 judgment. Additionally, Lowe

filed peremptory exceptions of res judicata, no right of action, and no cause of action

in this Court after the appeal was lodged. For the following reasons, we vacate the

January 15, 2026 judgment. We deny the exceptions of res judicata, no right of

action, and no cause of action, and deny Lowe' s writ application as moot. We

remand this matter for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

Baker and Lowe began a romantic relationship in 2011 while living in

Lubbock, Texas, but never married. During the relationship, Lowe became pregnant

through assisted reproductive technology using a donated oocyte and donated sperm.

Baker and Lowe thereafter moved to Clinton, Louisiana, and on July 2, 2022, Lowe

gave birth to the minor child. The next day, both parties executed a voluntary

acknowledgment of paternity. Baker and Lowe ended their romantic relationship in

October 2022.

In May 2023, Baker filed suit in the 20th Judicial District Court, Parish of

East Feliciana ( hereinafter the " 20th JDC suit"), to establish custody of the minor

child based on the voluntary acknowledgment of paternity. In response, Lowe filed

an exception of no right of action. While the 20th JDC suit was pending, Baker was

granted visitation with the minor child every weekend. On October 15, 2025, the

trial court presiding over the 20th JDC suit granted Lowe' s exception of no right of

action and vacated its interim judgment granting Baker visitation with the minor

child. Baker did not appeal the October 15, 2025 judgment making this judgment a

final judgment in the matter.

2

On October 28, 2025, Baker filed an " Ex Parte Motion for Custody" pursuant

to La. C. C.P. art. 3945 in the Family Court in and for the Parish of East Baton Rouge,

Louisiana (hereinafter the " underlying suit") wherein he alleged he has served as a

father figure to the minor child since the child' s birth. Baker further alleged that he

and Lowe had shared physical custody of the minor child for the previous three

years, with Baker exercising visitation every weekend. Baker asserted that

flmmediate and irreparable injury will result from the minor child being ripped

from his father' s house and no longer allowed to see him." Baker did not make

mention of the 20th JDC suit or the October 15, 2025 judgment in the ex parte motion

for custody, and specifically alleged " there are no judgments establishing legal

custody between the parties and the minor child."

In a separately designated section of the ex parte motion for custody, Baker

sought custody of the minor child pursuant to La. C. C. art. 133, specifically asserting

that, "[ flo award sole custody to Krystle Lowe would result in substantial harm to

the minor child" because it " would essentially bastardize the minor [ child] if sole

custody was awarded to her." Baker claimed Lowe was domiciled in East Baton

Rouge Parish, however, the service instructions listed on the ex parte motion for

custody did not request service on Lowe at an address in East Baton Rouge Parish.

In fact, no address was listed for Lowe on the ex parte motion for custody. Instead,

the ex parte motion for custody requested the trial court clerk " prepare service for
l
Krystle Lowe pursuant to [ La. C. C. P. art. 1313( A).]"

1 Baker attached to his ex parte motion for custody a certificate of service certifying that on October
28, 2025, a copy of the ex parte motion for custody was sent to Lowe via email transmission and
by calling her," and a copy was also emailed to her " former" counsel of record. Louisiana Code
of Civil Procedure article 3945( B)( 2) requires a mover seeking ex parte custody to provide the
adverse party with reasonable notice of the date and time the ex parte custody order is being
presented to the trial court or, alternatively, to provide reasons why notice is not required. See
Raymond v. Raymond, 25- 498 ( La. App. 5 Cir. 10/ 24/ 25), 426 So. 3d 81, 84 ( explaining that to
satisfy the notice requirement of La. C. C. P. art. 3945( B)( 2)( a), " the mover must reasonably inform
the adverse party in advance of the date and time the mover intends to present the proposed order
of temporary custody to the court."). ( Emphasis in original). The record indicates that Baker failed
to provide Lowe with reasonable notice of the day and time the ex parte custody order would be
N

The trial court held a hearing on Baker' s ex parte motion for custody the day
it was filed. Lowe did not appear at the hearing. Baker briefly testified regarding

his employment and potential daycare options if he obtained custody of the minor
child.
Baker also testified that Lowe lived in Baton Rouge, although he could not

provide an address. The trial court then asked where Lowe would be served and

counsel for Baker stated " we served her former counsel" who represented Lowe in

the 20th JDC suit. Following the hearing, the trial court signed a written order

granting Baker custody of the minor child from Friday, November 7, 2025, at 5: 00

p.m. until Sunday, November 9, 2025, at 5: 00 p.m., and the following weekend for

the same time period. The trial court granted custody of the minor child to Lowe for

the third weekend of November 2025, from November 21, 2025, at 5: 00 p.m. until

Sunday, November 23, 2025. The trial court scheduled review of the ex parte

custody order on November 25, 2025 at 9: 00 a.m. and directed Lowe to show cause

on that date and at that time why "[ i] t is not in the best interest of the minor child for

this Honorable Court to award legal custody to Jeremy Baker." The record does not

indicate that Lowe was served with the ex parte custody order or notice of the
2
November 25, 2025 hearing prior to the date of the scheduled hearing.

On October 29, 2025, Lowe, through counsel Elizabeth K. Fox, filed a " Notice

of Lis Pendens" to notify the trial court in the underlying suit that the 20th JDC suit

was currently pending and involved " the same parties, the same child... and the same

demand for custody and incidental relief."' Lowe did not request that her notice be

presented to the trial court. Additionally, Baker did not provide reasons why notice was not
required.

2 The record indicates that Baker requested service of the ex parte custody order and notice of the
November 25, 2025 hearing via La. C. C. P. art. 1313( A). However, the record does not indicate
Lowe was served with the ex parte custody order and notice of the November 25, 2025 hearing on
Lowe via La. C. C. P. art. 1313( A). Nor would service pursuant to La. C. C. P. art. 1313( A) have
been proper. See La. C. C. P. art. 1313( 0).

3 We note that the purpose of a notice of lis pendens is to give effective notice to third persons of
the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property.
See La. C. C. P. art. 3751; Mortgage Electronic Registration Systems, Inc. v. Bynum, 2003- 1671

0

set for hearing, but stated she reserved the right to file exceptions, including an

exception of lis pendens. Baker filed an objection to Lowe' s notice of lis pendens,

arguing the 20th JDC suit was no longer pending because the October 15, 2025

judgment dismissed Baker' s amended petition to establish custody. Lowe filed a

reply to Baker' s objection, arguing the 20th JDC suit remained pending because the

appeal delays for the October 15, 2025 judgment had not yet lapsed.4

On November 17, 2025, Baker filed a rule for contempt, arguing Lowe failed

to comply with the October 28, 2025 ex parte custody order. Baker requested that

Lowe be ordered to pay his attorney' s fees and costs due to her contempt and to

provide Baker with " makeup visitation" with the minor child for the time denied to

him. Baker' s rule for contempt was set for hearing on November 25, 2025.

However, there is no indication from the record that Lowe was served with the trial

court' s order setting a hearing on Baker' s rule for contempt.

Inexplicably, on November 25, 2025, the day review of the ex parte custody

order and Baker' s rule for contempt were scheduled to be heard, a status conference

was held instead.s Fox appeared on behalf of Lowe and argued Lowe had never

been properly served with Baker' s ex parte motion for custody. The trial court,

acknowledging that Lowe was not served with notice of the hearing scheduled for

November 25, 2025, thereafter continued the hearing on Baker' s ex parte motion for

custody until December 9, 2025, and extended the October 28, 2025 ex parte custody

order until December 9, 2025. The trial court did not hear Baker' s rule for contempt,

La. App. 1 Cir. 5/ 14/ 04), 879 So. 2d 807, 812, writ denied, 2004- 1926 ( La. 11/ 15/ 04), 887 So. 2d
479. In order to raise the objection of lis pendens as provided by La. C. C. P. arts. 531 and 532
when two or more suits are pending, a declinatory exception must be asserted. La. C. C. P. art.
925( A)( 3). The notice of lis pendens filed by Lowe does not meet the requirements of an
exception.

4 Lowe attached a copy of the October 15, 2025 judgment to her reply and pointed out that Baker' s
amended petition to establish custody was dismissed with prejudice, not without prejudice as stated
by Baker.

5 For reasons not explained, the status conference was held on the record.

5

explaining that Lowe had not been served with the ex parte custody order and

therefore, could not be held in contempt. Brett L. BaJon, Baker' s counsel, requested

an address for Lowe, but Fox stated that Lowe lived out of state and she would not

disclose her address, citing attorney-client privilege. Baker then orally moved for

the appointment of an attorney to serve Lowe. The trial court granted Baker' s oral

motion, but instructed him to file a written motion.

On November 26, 2025, Baker filed a written motion to appoint an attorneys

to represent Lowe, arguing Lowe is an " absentee" as defined by La. C. C. P. art.

5251( 1) because according to Fox, Lowe now lived out of state. Baker further

alleged that Lowe' s " whereabouts are unknown" to him, and Lowe " cannot be found

and served after a diligent search and her attorney of record refused to accept service

or divulge Ms. Lowe' s address." Baker requested an attorney be appointed to

represent Lowe pursuant to La. C. C.P. art. 5091( A)( 1)( a). On December 1, 2025,

the trial court granted Baker' s motion and appointed an attorney, Robin Cazayoux,

to represent Lowe. On December 3, 2025, the trial court issued an order setting " all

matters pending before this Honorable Court" for hearing on December 9, 2025. The

trial court' s December 3, 2025 order also extended the October 28, 2025 ex parte

custody order to December 9, 2025, and granted Baker' s oral motion to appoint an

attorney for Lowe.

Meanwhile, Lowe filed a writ application with this Court seeking review of

the October 28, 2025 ex parte custody order, as well as the trial court' s extension of

the October 28, 2025 ex parte custody order, and the appointment of an attorney to

effectuate service on Lowe.' Lowe sought expedited consideration of her writ

6 Baker captioned his motion as a " Motion to Appoint Curator[.]" The record further contains
other references to a " curator" to accept service for Lowe under La. C. C. P. art. 5091. We note,
however, La. C. C. P. art. 5091( A) provides for the appointment of an attorney at law, not a curator.
Therefore, in this opinion we refer to the appointed person as an attorney, not a curator.

This Court takes judicial notice of the writ application filed in this Court by Lowe on December
5, 2025. See La. C. E. art. 202.

0

application due to the pending December 9, 2025 hearing. In the alternative to

expedited consideration, Lowe requested a stay of the trial court proceedings. On

December 9, 2025, this Court granted Lowe' s writ application in part and vacated

the October 28, 2025 ex parte custody order and the portion of the December 3, 2025

order that extended the October 28, 2025 ex parte custody order. This Court denied

Lowe' s writ " in all other respects." Baker v. Lowe, 2025- 1258 ( La. App. I Cir.

12/ 9/ 25) 2025 WL 3527326, * 1( unpublished writ action) ( hereinafter the

December 9, 2025 writ action"). In the December 9, 2025 writ action, this Court

explained that the allegations in Baker' s ex parte motion for custody were

insufficient to demonstrate that he was entitled to custody under La. C. C. P. art.

3945( B)( 1). This Court denied Lowe' s request for a stay of the trial court

proceedings.

On December 9, 2025, Baker, through his attorney Bajon, attended the

scheduled hearing, but neither Lowe nor Fox made an appearance. According to the

trial court' s staff attorney, Fox sent an email to the trial court prior to the hearing to

advise that based on the writ action issued by this Court, she would not be attending

the scheduled hearing because the ex parte custody orders had been vacated.

Cazayoux, who was present at the hearing, stated that she, as the appointed attorney

for Lowe, was served.' Cazayoux. noted that she was contacted by Fox by email

prior to being served and Fox stated that she represented Lowe and objected to

Cazayoux "moving forward in any capacity." Cazayoux stated she " forwarded [ Fox]

certified copies whenever I received them."

Additionally, at the outset of the hearing, the following pertinent exchange

occurred between Bajon and the trial court regarding the nature of the hearing and

the issues to be resolved:

I The record does not indicate that Cazayoux was sworn in as a witness. Cazayoux did not specify
what documents she was served. However, the record contains a copy of a citation indicating
Cazayoux was served with Baker' s ex parte motion for custody on December 4, 2025.
7

Mr. Bajon: We would like to move forward, Judge. We have done
everything necessary --

The Court: There is nothing to move forward with —did you read the
First Circuit thing --

Mr. Bajon: I did respectfully Judge.

The Court: Okay. I' m listening --

Mr. Bajon: I did read it this morning, and all it did was vacate the ex
parte order. It denied her request for a stay. So are -- the subsequent
hearing that needs to happen on the custody pursuant to Article 133 is
still moving forward.

Mr. Bajon: And again, Your Honor. It [ the December 9, 2025 writ
action] vacates the October 28th order and says the portion of the Family
Court' s December 3, 2025 order, which extended that order of custody,
is vacated.

And at the end, it says the writ is denied in all other [ respects], and it
also denies the stay.

Mr. Bajon: And then we already had the custody set. So, the custody
is still set before the day. The stay has been denied.

So, we' re of the opinion that. the custody matter pursuant to [ La. C. C.
art.] 133 is still on.

The Court: When was the custody order to be set --

Mr. Bajon: Until today, Your Honor. So, you had extended the
and [ the
temporary custody order until today from November 25',
December 9, 2025 writ action] specifically says that that portion of the
December 3rd order which extended that order of custody be vacated.

So, I think it' s clear that the First Circuit is saying maybe the original
temporary order is vacated, but -- by them denying her request for a
stay and all other requests in her writ -- I think the First Circuit is
wanting us to have an actual custody hearing on the merits.

And Ms. Fox is playing games and trying to continue to push it back.

The Court: And so there were ample allegations made in [ the ex parte
motion] regarding custody?

N.

Mr. Baion: Yes, ma' am, we put in there substantial harm tests that my
client --
you know, the child being or my client being ripped from the
child' s life —as having been a parent figure for all of this child' s life
would cause substantial han-n to the child.

And that no sole award of custody to Ms. Lowe would cause substantial
harm. Now we would also love to argue —

The Court: Today is Tuesday, so you have 15 minutes if you want to
proceed today. Otherwise, we have to do a case management schedule.

Thereafter, the hearing proceeded on Baker' s claim for custody under La. C. C.

art. 133 in Lowe' s absence. Baker testified he was in a relationship with Lowe for

11 years and the couple agreed to have a child using a donated fertilized embryo

after they could not conceive naturally.' Baker stated he intended to be a father to

the minor child and signed an acknowledgment of paternity after the minor child

was born. Baker testified he saw the minor child every day until he and Lowe ended

their relationship in December 2022. Baker explained he filed for custody of the

minor child in the 20th JDC because that was where Lowe and the minor child were

living at the time. Baker stated he was granted visitation of the minor child in the

20th JDC suit in July 2023, but the visitation order was vacated by the October 15,

2025 judgment. Baker' s current romantic partner and his friend both testified at the

hearing that Baker is a father figure to the minor child. Following the testimony, the

trial court took the matter under advisement.

On January 15, 2026, the trial court signed a written judgment, which states,

in relevant part, as follows:

THIS MATTER came before the Court on the 9" day of December,
2025, pursuant to an Ex Parte Motion for Custody filed by JEREMY
BAKER on October 28, 2025, and the Louisiana Code of Civil
Procedure article 3945( D) hearing required by law. Present in court
were JEREMY BAKER with his counsels of record, BRETT L.

9 A copy of the contract from the fertility clinic signed by Lowe and Baker was admitted into
evidence at the hearing. The trial court also admitted a copy of an acknowledgement of paternity
signed by Baker and Lowe on July 3, 2022, as well as multiple text messages between Lowe and
Baker wherein Lowe referred to Baker as the father to the minor child. The text messages also
included photographs of Baker and the minor child.

M

BAJON and GRAHAM E. PEAVY. KRYSTLE LOWE failed to
appear
after being properly served via her counsel of record,
ELIZABETH K. FOX, by the Court-appointed [ attorney], ROBIN V.
CAZAYOUX. Ms. Fox also failed to appear on her client' s behalf.

WHEREUPON, THE COURT, after hearing the testimony of the
parties; considering the pleadings in the record and the applicable law,
including Louisiana Civil Code articles 133 and 136; and issuing
written reasons, ordered as follows:

IT IS ORDERED that KRYSTLE LOWE shall continue exercising
sole custody of the minor child ... born July 3, 2022.

IT IS FURTHER ORDERED that JEREMY BAKER is awarded
reasonable visitation with the minor child every third weekend of each
month from Friday at 6: 00 PM to Sunday at 6: 00 PM, as well as any
additional times as agreed upon by the parties.

IT IS FURTHER ORDERED that the parties shall exchange the
minor child at a mutually agreeable location at a halfway point between
the parties' residences ....

Lowe appeals the January 15, 2026 judgment. Lowe also filed a writ

application, 2026 CW 0212, seeking review of the January 15, 2026 judgment and

raising the same issues as in the assignments of error in her appellate brief. On

March 16, 2026, a panel of this Court referred Lowe' s writ application to the appeal

panel for the yet -to -be lodged appeal.

EXCEPTIONS FILED ON APPEAL

After this appeal was lodged, but prior to submission of the case, Lowe filed

exceptions of res judicata, no right of action, and no cause of action. We address

these exceptions first.

Exception ofRes Judicata

Lowe argues the October 15, 2025 judgment rendered in the 20th JDC suit is

a res judicata bar to Baker' s claim for custody in the underlying suit. In support of

her exception, Lowe points out the following: ( 1) the October 15, 2025 judgment is

valid and final; ( 2) the parties to both suits are the same; ( 3) the cause of action

asserted in the underlying suit existed at the time of the October 15, 2025 judgment

10

was rendered; and ( 4) the causes of action asserted in the underlying suit arose out

of the same transaction or occurrence that was the subject of the 20th JDC suit.

Baker argues his claim for custody pursuant to La. C. C. art. 133 did not exist

at the time the 20th JDC suit was pending and only arose after the October 15, 2025

judgment was rendered.

The doctrine of res judicata precludes subsequent litigation when all of the

following are satisfied: ( 1) the judgment is valid; ( 2) the judgment is final; ( 3) the

parties in the two matters are the same; ( 4) the cause or causes of action asserted in

the second suit existed at the time of the final judgment in the first litigation; and ( 5)

the cause or causes of action asserted in the second suit arose out of the transaction

or occurrence that was the subject matter of the first litigation. See La. R. S. 13: 4231;

Burguieres v. Pollingue, 2002- 1385 ( La. 2/ 25/ 03), 843 So. 2d 1049, 1053.

Louisiana Code of Civil Procedure article 2163 affords a party the opportunity

to raise peremptory exceptions, such as an exception of res judicata, for the first time

in the appellate court. However, the article specifically states that for such an

exception to be considered " proof of the ground of the exception" must appear of

record. Id. The article does allow for remand of the case to take evidence on the

exception if it is based on prescription. Id. However, if the grounds of the exception

of res judicata do not appear in the record, the exception cannot be considered for

the first time in the appellate court and must be denied. Smith v. State, Dept. of

Transp. & Development, 2004- 1317 ( La. 3/ 11/ 05), 899 So. 2d 516, 530- 31.

Lowe and Baker both acknowledge the proceedings in the 20th JDC suit and

the rendition of the October 15, 2025 judgment. However, no portion of the record

of the 20th JDC suit, including the October 1,5, 2025 judgment, was admitted into

evidence in the underlying suit. As such, the proof of the ground of the exception is

not contained in the record before this Court and we are unable to address Lowe' s

11

exception of res judicata. Accordingly, Lowe' s exception of res judicata is denied."

See Smith, 899 So. 2d at 531.

Exception ofNo Right ofAction

Lowe argues Baker has no right of action under La. C. C. art. 133 because

Baker has never been the minor child' s primary caregiver.

Baker argues he has a right of action under La. C. C. art. 133 because his ex

parte motion for custody alleges the minor child has been living with him and he is

willing to continue his relationship with the minor child. I I

The peremptory exception of no right of action tests whether the plaintiff who

seeks relief is the person in whose favor the law extends a remedy. See La. C.C. P.

art. 927; Denham Homes, L.L. C v. Teche Federal Bank, 2014- 1576 ( La. App. 1 st
Cir. 9/ 18/ 15), 182 So. 3d 108, 120. The exception does not raise the question of the

plaintiff' s ability to prevail on the merits nor the question of whether the defendant

may have a valid defense. See La. C. C. P. art. 927( A)(6); Pearce v. Lagarde, 2020-

1224 ( La. App. 1 Cir. 10/ 7/ 21), 330 So. 3d 1160, 1166- 67, writ denied, 2022- 00010

La. 2/ 22/ 22), 333 So. 3d 446. An appellate court may consider an exception of no

right of action filed for the first time on appeal if the proof of the ground of the

exception appears from the record. La. C. C. P. art. 2163.

Louisiana Civil Code article 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.

10 We note Lowe is not precluded from filing her exception of res judicata in the underlying suit
after this matter is remanded. See Louisiana State Bar Assn v. Carr & Associates, Inc., 2008-
2114 ( La. App. 1 Cir. 5/ 8/ 09), 15 So. 3d 158, 164, writ denied, 2009- 1627 ( La. 10/ 30/ 09), 21 So.
3d 292 (" a party may re -urge a peremptory exception after it has been denied"). We also note our
grave concern regarding the appearance of forum and/ or judge shopping considering the timing of
the institution of the underlying suit, which appears to have occurred while the 20th JDC suit was
still pending.

i i Baker also argues he has a right of action under La. C. C. art. 136. However, Baker' s motion for
ex parte custody does not allege a claim for visitation under La. C. C. art. 136.
12

Thus, under the plain language of La. C. C. art. 133, the class of persons with a right

of action to seek non -parent custody falls into two categories: ( 1) a person with

whom the child has been living in a wholesome and stable environment; or (2) any

other person able to provide an adequate and stable environment. La. C. C. art. 133;

see Creel v. Giordano, 2026- 116 ( La. App. 5 Cir. 7/ 22/ 26) --- So. 3d ---- ---- 2026

WL 2120372, * 7. Based on the broad language of La. C. C. art. 133, we find Baker

has a right of action to seek custody of the minor child pursuant to that article.

Accordingly, Lowe' s exception of no right of action is denied.

Exception ofNo Cause ofAction

Lowe argues Baker' s ex parte motion for custody fails to state a cause of

action under La. C. C. art. 133 because he does not allege that the minor child has

been living with him in a wholesome and stable environment, or that Baker is able

to provide an adequate and stable environment for the minor child.

Baker argues the allegations in his ex parte motion for custody state a cause

of action for custody of the minor child under La. C. C. art. 133.

The function of the peremptory exception of no cause of action is to test the

legal sufficiency of the petition by determining whether the law affords a remedy on

the facts alleged in the pleading. Calloway v. Lobrano, 2016- 1170 ( La. App. I Cir.

4/ 12/ 17), 218 So. 3d 644, 648. No evidence may be introduced to support or

controvert the objection that the petition fails to state a cause of action. La. C. C. P.

art. 931. The exception is triable on the face of the pleading, and for the purpose of

determining the issues raised by the exception, the well -pleaded facts in the pleading

must be accepted as true. Calloway, 218 So. 3d at 648. The burden of demonstrating

that no cause of action has been stated is on the party raising the objection. Christian

Schools, -Inc. v. Louisiana High School Athletic Association, 2020- 0762 ( La. App. I

Cir. 5/ 18/ 22), 342 So. 3d 1068, 1074, writ denied, 2022- 01015 ( La. 10/ 12/ 22), 348

So. 3d 78. In reading a petition to determine whether a cause of action has been

13

stated, it must be interpreted, if possible, to maintain the cause of action instead of

dismissing the petition. Any reasonable doubt concerning the sufficiency of the

petition must be resolved in favor of finding that a cause of action has been stated.
Id.

In his ex parte motion for custody, Baker alleges he had shared custody ofthe
minor child for the past three years and he exercised visitation every weekend. Baker

also alleged that he has been a father figure to the minor child and is willing to
continue his relationship with the minor child. Accepting the facts alleged in the ex

parte motion for custody as true, which we are required to do, and interpreting the
allegations in the ex parte motion for custody in order to maintain a cause of action,

we find Baker alleged sufficient facts that the minor child lived with him in a stable

and wholesome environment or that he is capable of providing an adequate and
stable environment. See La. C. C. art. 133. Accordingly, Lowe' s exception of no

cause of action is denied.

Lowe asserts the following assignments of error:

1.
The [ trial court] committed legal error by proceeding despite Mr.
Baker' s failure to properly serve Ms. Lowe.

2. The [ trial court]
committed legal error by adopting Mr. BaJon' s
misinterpretations of [the December 9, 2025 writ action], the text of
La. C. C. P. art.] 3945( D), and the procedural posture of the case.

3. The [ trial court] committed legal error by concluding that Ms. Lowe
had adequate notice of the December 9, 2025 status conference and the
La. C. C. art.] 133 custody hearing.

4. The [ trial court]
committed legal error by rendering a default
judgment materially different from the relief prayed for in Mr. Baker' s
ex parte motion for custody].

5. The [ trial court]
committed legal error by misapplying the legal
standards under [ La. C. C. arts.]133 and 136 in issuing its January 15,
2026 (judgment].

14

DISCUSSION

Assignment ofError Number I

In her first assignment of error, Lowe argues she was never properly served

with Baker' s ex parte motion for custody and she never waived service. Lowe

asserts that since she lives out of state, Baker was required to serve her under

Louisiana' s long-arm statute, La. R.S. 13: 3204. Lowe points out that Baker never

attempted to serve her through the available statutory procedures, but instead sought

the appointment of an attorney ad hoc " on the premise that Ms. Lowe could not be

served because Ms. Fox refused to accept service or disclose Ms. Lowe' s address,

not because he had attempted to and failed at serving her."

Baker argues service was effectuated on Lowe when Cazayoux, the attorney

appointed by the trial court pursuant to La. C. C.P. art. 5091, was served. Baker notes

that " shortly following the [ October 15, 2025 judgment], Ms. Lowe left the State

with the minor child." Baker further points out that Fox refused to provide Lowe' s

out-of-state address. Therefore, Baker argues Lowe was properly served through

Cazayoux.

Absent an express written waiver, citation and service thereof are essential in

all civil actions; without citation and service all proceedings are absolutely null. La.

C. C. P. art. 1201. An absolutely null judgment for a vice of form under La. C. C. P.

art. 2002( B) may be raised by any interested person at any time, before any court,

and through a collateral proceeding, such as a contradictory motion or rule. Butler

v. Sandberg, 2018- 0917 ( La. App. I Cir. 10/ 23/ 19), 289 So. 3d 638, 641. Generally,

a party attacking citation and service must prove by a preponderance of the evidence

that there was lack of service of process. Id.

Louisiana Revised Statutes 13: 3204 provides, in relevant part:

A. In a suit under R.S. 13: 3201, a certified copy of the citation or the
notice in a divorce under Civil Code Article 102 and of the petition or
a certified copy of a contradictory motion, rule to show cause, or other

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pleading filed by the plaintiff in a summary proceeding under Code of
Civil Procedure Article 2592 shall be sent by counsel for the plaintiff,
or by the plaintiff if not represented by counsel, to the defendant by
registered or certified mail, or actually delivered to the defendant by
commercial courier, when the person to be served is located outside of
this state or by an individual designated by the court in which the suit
is filed, or by one authorized by the law of the place where the service
is made to serve the process of any of its courts of general, limited, or
small claims jurisdiction.

B. If service of process cannot be made on the nonresident by registered
or certified mail or by actual delivery, the court shall order that service
of process be made on an attorney at law appointed to represent the
defendant pursuant to Code of Civil Procedure Article 5091.

Louisiana Code of Civil Procedure article 5091 provides, in pertinent part:

A. The court shall appoint an attorney at law to represent the defendant,
on the petition or ex parte written motion of the plaintiff, when:

1) It has jurisdiction over the person or property of the defendant, or
over the status involved, and the defendant is:

a) A nonresident or absentee who has not been served with process,
either personally or through an agent for the service ofprocess, and who
has not waived objection to jurisdiction.

Louisiana Code of Civil Procedure article 5251( 1) defines " absentee" for

purposes of the Louisiana Code of Civil Procedure as follows:

Absentee" means a person who is either a nonresident of this state, or
a person who is domiciled in but has departed from this state, and who
has not appointed an agent for the service of process in this state in the
manner directed by law; or a person whose whereabouts are unknown,
or who cannot be found and served after a diligent effort, though he
may be domiciled or actually present in the state; or a person who may
be dead, though the fact of his death is not known, and if dead his heirs
are unknown.

Initially, we find the emails that were purportedly sent to Lowe and Fox with

a copy of the ex parte motion for custody attached did not effectuate service on

Lowe. 12 Louisiana Code of Civil Procedure article 1313( A) permits a pleading,

subsequent to the original petition, to be served by mail, delivery, or electronic

means.
Baker' s ex parte motion for custody, which included his claim for custody

12 The record does not indicate that the emails were admitted into evidence.

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under La. C. C. art. 133, was the original petition or pleading filed in the underlying
suit, and therefore, could not be served on Lowe or Fox pursuant to La. C. C. P. art.

1313( A).

We next consider whether service was effectuated on Lowe through service

on Cazayoux, as appointed attorney for Lowe under La. C. C.P. art. 5091( A). 13 Lowe

argues the trial court should not have appointed Cazayoux to accept service on her

behalf because Baker failed to demonstrate that he could not serve Lowe pursuant

to La. R.S. 13: 3204. As discussed, La. R. S. 13: 3204( B) provides that if service

cannot be made on a nonresident defendant pursuant to La. R.S. 13: 3204( A), by

registered or certified mail or by actual delivery, then the court shall order service

on the nonresident pursuant to La. C. C. P. art. 5 09 1. Here, there is no indication in

the record that Baker attempted service on Lowe pursuant to La. R.S. 13: 3204( A).

However, Fox stated during the November 25, 2025 status conference that Lowe had

moved out of state with the minor child.

As noted, La. C. C. P. art. 5091( A)( 1)( a) provides that the court shall appoint

an attorney at law to represent the defendant when it has jurisdiction over the person

and the defendant is "[ a] nonresident or absentee[.]" ( Emphasis added).

Furthermore, the term "[ a] bsentee" is defined, in pertinent part, in La. C. C. P. art.

5251( 1) as " a person who is either a nonresident of this state, or a person who is

domiciled in but has departed from this state, and who has not appointed an agent

for the service of process in this state[.]" Lowe concedes she no longer lives in

Louisiana and therefore, we find she is a nonresident for purposes of La. C. C. P. art.

13 As stated, La. C. C. P. art. 5091( A)( 1) requires a court, on the ex parte written motion of the
plaintiff, to appoint an attorney to represent a defendant when the court " has jurisdiction over the
person or property of the defendant, or the status involved[.]" Initially, we note that the record
does not indicate that Lowe submitted to the jurisdiction of the trial court. See La. C. C. P. art.
6( A)(3). Additionally, according to Lowe, her and the minor child no longer live in Louisiana.
However, as the issue of whether the trial court has personal jurisdiction over Lowe was not raised
in the proceedings below, we find the record does not contain sufficient evidence for us to resolve
this issue.

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5091( A)( 1)( a).
See Carter v. First South Farm Credit, ACA, 49, 531 ( La. App. 2 Cir.
1/ 14/ 15), 161 So. 3d 928, 933, writ denied, 2015- 1166 ( La. 9/ 18/ 15), 178 So. 3d

151, cert. denied, 577 U.S. 1142, 136 S. Ct. 1199, 194 L. Ed. 2d 183 ( 2016) ( finding

the defendants were " absentees" under La. C. C. P. art. 5252( 1)
because they were

nonresidents and thus, the fact the defendants' whereabouts were unknown was

irrelevant). As such, we find Lowe failed to prove by a preponderance of the

evidence that she was not properly served through Cazayoux. Accordingly, this

assignment of error is without merit.

Assignments ofError Nos. 2 and 3

In her second assignment of error, Lowe argues the trial court legally erred in
its interpretation of the December 9, 2025 writ action, the text of La. C. C. P. art.

3945, and the procedural posture of the underlying case. In sum, Lowe argues the

trial court erred by holding a hearing on Baker' s request for custody under La. C. C.

art. 133 on December 9, 2025 after the December 9, 2025 writ action was issued. In

her related third assignment of error, Lowe argues the trial court erred by holding a

hearing on Baker' s request for custody under La. C. C. art. 133 on December 9, 2025

because she did not have notice of the hearing.

Louisiana Code of Civil Procedure article 3945( D) requires an expedited

hearing be held within thirty days of the issuance of an ex parte custody order. In

Fontenot v. Fontenot, 2024- 215 ( La. App. 3 Cir. 12/ 11/ 24), 404 So. 3d 42, 46, writ

granted in part on other grounds, denied in part, 2025- 00048 ( La. 2/ 25/ 25), 401 So.

3d 650, the appellate court explained, in pertinent part, the nature of the expedited

hearing provided by La. C. C. P. art. 3945( D) as follows:

The thirty -day hearing required by [ La. C. C.P.] art. 3945( D) is not the
trial to establish permanent custody. Nor is it the trial to modify
permanent custody. Oversimplifying slightly, it is instead an expedited
hearing intended to stabilize the custodial situation through temporary
orders on legal custody and on time periods with the minor children.

A hearing conducted under La. C. C. P. art. 3945( D) does not take the place of a trial

on the merits and a judgment rendered thereafter is not a final judgment. See

Fontenot, 404 So. 3d at 46- 47. In contrast, La. C. C. art. 133, which authorizes an

award of custody to a non -parent, does not require that a hearing be held on an

expedited basis. The burden of proof is different under La. C. C. art. 133 ( substantial

harm) than under La. C. C. P. art. 3945 ( immediate and irreparable injury). A

judgment granting custody pursuant to La. C. C. art. 133 is a final judgment. See

Wiley v. Small, 2022- 0675 ( La. App. I Cir. 12/ 22/ 22), 357 So. 3d 839, 840.

Adequate notice is one of the most elementary requirements of procedural due

process; it is fundamental to our system of laws that there be notice prior to trial.

See Smith v. LeBlanc, 2006- 0041 ( La. App. I Cir. 8/ 15/ 07), 966 So. 2d 66, 76.

Procedural due process requires an opportunity to be heard, in addition to notice of

the pendency of an action, and in conjunction therewith, adequate notice of the

hearing is fundamental. Ronitski v. Ikonitski, 2016- 0642 ( La. App. I Cir. 9/ 16/ 16),

204 So. 3d 232, 234. Louisiana Code of Civil Procedure article 1571( A)( 1)( a),

provides, in pertinent part, that, district courts shall prescribe the procedure for

assigning cases for trial by rules, which shall require adequate notice of trial to all

parties.
See Hill v. Lopez, 2005- 0182 ( La. App. I Cir. 2/ 22/ 06), 929 So. 2d 80, 82

n. 2 ( noting that " adequate" notice must describe the nature or purpose of the

hearing).

Following this Court' s December 9, 2025 writ action, Baker' s claim for

custody under La. C. C. art. 133 was still pending, as there had not been an

adjudication of that claim. However, there is no indication from the record before

us that Baker' s claim for custody under La. C. C. art. 133 had been set for trial on

December 9, 2025, or that Lowe had notice that the claim was set for trial on that

date. Additionally, there is no language in the December 9, 2025 writ action

directing the trial court to hear Baker' s claim for custody under La. C. C. art. 133 at

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the December 9, 2025 hearing. During the November 25, 2025 status conference,

the trial court advised the parties that it was setting the expedited hearing on Baker' s

ex parte motion for custody on December 9, 2025. The record is devoid of any

notice that Baker' s action for custody under La. C. C. art. 133 was set for trial on

December 9, 2025. Baker' s action for custody pursuant to La. C. C. art. 133 should

have been considered after a trial on the merits where both parties received adequate

notice and had an opportunity to prepare for the trial. The transcript of this matter

indicates that not only was Lowe under the impression that the December 9, 2025

hearing was rendered moot following this Court' s December 9, 2025 writ action, but

the trial court was also initially of the opinion there was nothing to be heard on that
date.

We further note the record does not contain an answer filed by Lowe.

According to La. C. C. P. art. 157l( A)(2), ordinary proceedings may not be set for

trial except after an answer is filed. Typically, a judgment obtained in violation of

the mandatory requirements of La. C. C. P. art. 1571 is null and void, unless this

irregularity is waived. Shepherd v. Schedler, 2015- 1750 ( La. 1/ 27/ 16), 209 So. 3d

752, 776, on rehg (5/ 2/ 16) ( per curiam). There is no indication from the record that

Lowe waived this error.

Based on the record before us, we find Lowe did not receive adequate notice

that Baker' s action for custody pursuant to La. C. C. art. 133 would be heard on

December 9, 2025. The lack of proper notice violated Lowe' s right to procedural

due process. Accordingly, we vacate the trial court' s January 15, 2026 judgment.

See Ikonitski, 204 So. 3d at 235. Because we vacate the January 15, 2026 judgment,

we pretermit the remaining assignments of error.

CONCLUSION

For the aforementioned reasons, we vacate the trial court' s January 15, 2026

judgment. Lowe' s writ application assigned 2026 CW 0212 is denied as moot. The

Fill

peremptory exceptions of res judicata, no right of action, and no cause of action filed

on appeal by Krystle Lowe are denied. We remand this matter for further

proceedings consistent with this opinion. Costs of this appeal are assessed against

Jeremy Baker.

JUDGMENT VACATED; EXCEPTIONS OF RES JUDICATA, NO
RIGHT OF ACTION, AND NO CAUSE OF ACTION RAISED ON APPEAL
DENIED; WRIT DENIED AS MOOT; CASE REMANDED.

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