Dana A. Duerson Versus Wesley A. Duerson

DANA A. DUERSON NO. 22-C-520

VERSUS FIFTH CIRCUIT

WESLEY A. DUERSON COURT OF APPEAL

STATE OF LOUISIANA

November 15, 2022

Linda Wiseman
First Deputy Clerk

IN RE WESLEY A. DUERSON

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFRSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MICHAEL P. MENTZ,
DIVISION "F", NUMBER 829-096

Panel composed of Judges Susan M. Chehardy,
Robert A. Chaisson, and John J. Molaison, Jr.

WRIT GRANTED

In this writ application, relator, Dr. Wesley Duerson (“Wesley”), seeks
review of the trial court’s October 31, 2022 judgment denying his motion to stay
the temporary relocation of respondent, Mrs. Dana Duerson (“Dana”), and their
two minor children to Florida as recommended by the Hearing Officer and the
court appointed custody evaluator. In concluding that the relocation issue was not
properly before the hearing officer on October 25, 2022, we find the trial court
erred in denying the motion to stay. Consequently, we grant the instant writ
application, reverse the trial court’s October 31, 2022 judgment, and remand the
matter with instructions to issue a stay of the October 25, 2022 interim ruling
authorizing the immediate temporary relocation of the minor children until such
time as a final ruling by the trial court on the issue of relocation is determined.

Wesley and Dana Duerson were married in 2018, but have been physically
separated since May 2022; their divorce is pending. Of the marriage two children
were born, who are currently ages three and one. Dana is the primary caretaker of
the children, and Wesley has only recently taken a more intentional role in their
lives. Having no familial support in Louisiana, and allegedly only minimal support
from Wesley, Dana requested permission to relocate with the minor children to
Florida, where both of her parents and aunt reside. Dana intends to initially reside
with the children at her parents’ home, where her parents can provide her with
caregiver support for the two young children.

Wesley is currently in his second year of residency with Ochsner in
Metairie, Louisiana, and anticipates completing that program in eighteen months.

22-C-520

Thereafter, he will be seeking a fellowship that could result in a move to anywhere
in the country, including possibly Florida. Wesley would like for Dana to remain
in New Orleans with the minor children for the next eighteen months until he
completes his residency. According to Wesley, his aunt and elderly grandmother,
who both reside on the Northshore, have offered to help Dana with the children.

A hearing officer conference was held on September 2, 2022, and according
to the “Stipulations and/or Recommendations of the Hearing Officer,” the issues
addressed at the conference included, among others, custody, support, and Dana’s
request to relocate to Florida with the minor children. Though neither party
requested a custody evaluation in their pleadings, at the request of Wesley’s
counsel at the hearing, the parties agreed to submit to an evaluation by Dr. James
Klein and that Dana’s request for relocation would be determined after the
evaluator’s report was prepared. Specifically, the Interim Judgment rendered on
September 2, 2022, and signed by the trial court on September 21, 2022, stated, in
part:
IT IS ORDERED, ADJUDGED, AND DECREED
that, upon stipulation of the parties, the Rules of Child
Support and Spousal Support are hereby continued to be
resumed at a Hearing Officer conference on October 25,
2022, at 9:30 a.m.; and all parties waive notice.
***
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that, upon stipulation of the parties, Dr.
James Klein is appointed to conduct a custody evaluation
of the parties and minor children, and both parties shall
contact Dr. Klein within seven (7) days of September 2,
2022.
***
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED upon stipulation of the parties, the mother’s
request to relocate will be decided after the parties submit
to the custody evaluation and a report is prepared, and
upon further Orders of the Court. [Emphasis supplied.]

In accordance with the Interim Judgment, the custody evaluation took place
between September 9, 2022, and October 11, 2022. Dr. Klein’s report, which
included the recommendation that Dana’s request for relocation be granted, was
completed on October 18, 2022, and distributed to the parties in advance of the
already scheduled October 25, 2022 hearing.

The parties returned for a hearing officer conference on October 25, 2022.
According to the September 2, 2022 Interim Judgment, as well as the “Stipulations
and/or Recommendations of the Hearing Officer,” the only “Issues in Dispute” that
were “checked” and to be considered by the Hearing Officer on that date were,
“Custody, Child Support, and Interim Spousal Support.” The line next to
“Relocation” was left blank. Nonetheless, over the objection of Wesley’s counsel,
after hearing additional testimony by the parties, arguments of counsel, and
reviewing the evaluator’s report, the hearing officer, considering it to be in the best
interest of the children and in accord with Dr. Klein’s report, recommended that
Dana’s request to temporarily relocate the children to Florida be granted.

2

An Interim Judgment adopting the recommendations of the hearing officer
was signed by the trial court on October 25, 2022, stating, in part, “[a]fter the filing
of timely objections the Interim Judgment remains in effect pending a hearing
before the District Court Judge.” A hearing de novo before the trial court is
currently set, according to the official record, on December 7 and 19, 2022, in
approximately three weeks.

Also on October 25, 2022, Wesley filed a “Motion to Stay the
Recommendation of the Hearing Officer Granting Temporary Relocation of the
Minor Children until the Objection Hearing Can be Held and Objection to the
Recommendations of the Hearing Officer from the Hearing Officer Conferences
Held on September 2, 2022 and October 25, 2022.” Following an expedited
hearing on Wesley’s motion to stay held on October 31, 2022, the district court
denied the motion. Wesley now seeks review of that ruling.

The crux of Wesley’s argument set forth in his writ application is that he did
not have proper notice that the relocation issue was going to be addressed by the
hearing officer on October 25, 2022. Wesley does not contend that he was not
given notice under La. R.S. 9:355 et seq. that Dana was seeking to relocate to
South Florida with the minor children. Rather, he contends that, pursuant to the
hearing officer’s September 2, 2022 recommendations and the trial court’s Interim
Judgment signed on September 21, 2022, the only matters that were set to be taken
up at the October 25, 2022 hearing officer conference were custody, child support,
and spousal support. Wesley argues that the relocation issue was not going to be
revisited or determined until after the custody evaluation was completed and a
report was prepared. Thus, even though the evaluator’s report happened to be
prepared and distributed prior to the October 25, 2022 hearing, the relocation issue
was not formally set to be considered on that date. Consequently, Wesley argues
the trial court erred in failing to grant his stay of the order authorizing the
temporary relocation of the minor children.

After reviewing the express language of the trial court’s September 21, 2022
Interim Judgment—“the mother’s request to relocate will be decided after the
parties submit to the custody evaluation and a report is prepared, and upon further
Orders of the Court”—we agree. While it is true that the parties submitted to the
custody evaluation and a report was prepared, there was no further “Order[] of the
Court” actually setting the relocation issue for a contradictory hearing on October
25, 2022. Thus, because the issue was not properly set for hearing, and
considering the objection of Wesley’s counsel regarding same, the hearing officer
erred in making a recommendation that Dana be allowed forthwith to temporarily
relocate to Florida with the minor children. Thus, we find the trial court likewise
erred in making that recommendation the judgment of the court, and in failing to
grant Wesley’s motion to stay the ruling authorizing Dana to immediately relocate
with the children.

For the foregoing reasons, we grant Wesley’s writ application, reverse the
trial court’s October 31, 2022 denial of Wesley’s motion to stay, and remand the
matter to the trial court with instructions to issue a stay of the October 25, 2022
interim judgment granting Dana’s request to temporarily relocate with the minor
children to Florida until such time as a final ruling by the trial court on the issue of
relocation is determined, at the hearing currently scheduled December 7 and 19,

3

2022.1 We also instruct the trial court to notify this Court when a stay has been
issued.

Gretna, Louisiana, this 15th day of November, 2022.

SMC
RAC
JJM

1
We specifically note that this ruling in no way precludes Dana from taking her children to visit
her parents and aunt in Florida at some time between now and the commencement of the December 7,
2022 hearing.
4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 11/15/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-C-520
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Michael P. Mentz (DISTRICT JUDGE)
David M. Prados (Respondent) Jennifer C. Carter (Relator)

MAILED