Eduardo Granados v. Jamie Lopez Granados

Judgment rendered June 1, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,578-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

EDUARDO GRANADOS Plaintiff-Appellant

versus

JAMIE LOPEZ GRANADOS Defendant-Appellee

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 160824

Honorable John M. Robinson, Judge (Pro Tempore)

*****

WEEMS, SCHIMPF, HAINES, Counsel for Appellant
SHEMWELL & MOORE
By: Kenneth P. Haines

RICHARD E. GRIFFITH

HARRELSON LAW FIRM, PA Counsel for Appellee
By: Steven Pate Harrelson

*****

Before MOORE, STONE, and MARCOTTE, JJ.

STONE, J.

This child custody case arises from the 26th Judicial District Court,

the Honorable John M. Robinson presiding. The parties are Eduardo

Granados and Jamie Granados, the father and mother of a minor child. After

a trial, the parents were granted joint custody, with Jamie designated as the

domiciliary parent. The court ordered that the child is to live with Jamie

during the school year, and with Eduardo during the summer. Eduardo

appeals. We amend and affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

The parties had the minor child (the “child”) while they were married

and living near Barksdale Air Force Base pursuant to Eduardo’s military

assignment there. Eduardo was deployed overseas from August of 2018 to

March of 2019. Just weeks after his return, Jamie informed him she wanted a

divorce. Eduardo brought the child to Indiana and then returned to Bossier

City with the child in mid-2019. Shortly after Eduardo’s return with the

child, Jamie enlisted in the military and left for basic training in San

Antonio, Texas, on June 4, 2019. This initiated the parties’ physical

separation, and thereafter divorce and child custody litigation ensued.

Eduardo filed a petition for divorce and to be named domiciliary parent and

to be allowed to relocate the child’s primary residence to Indiana. Jamie

filed a reconventional demand, which included a request that she be

designated the domiciliary parent, and an objection to Eduardo’s proposed

relocation. Jamie did not, however, explicitly request “relocation” in her

pleadings to the trial court.

Litigation was ongoing for the two years following Jamie’s move to

San Antonio, and during that time, Eduardo had physical custody of the

child and was her primary caregiver. Shortly after Eduardo separated from

the military in April 2021, the custody suit, wherein both parties requested

domiciliary status, went to trial. As of the time of trial, Eduardo intended to

move back to his apparent state of domicile, Indiana.

The trial court awarded domiciliary custody to Jamie as a resident of

San Antonio, Texas. The trial court, in its oral reasons for judgment,

discussed the impact, if any, of each factor listed in La. C.C. art. 134. He

found that La. C.C. art. 134(A)(4) & (6), italicized infra, favored Jamie, and

that the remainder of the factors in that article favored neither party.

Specifically, the basis for the trial court’s decision was its finding that Jamie

would provide better stability for the child because Jamie was gainfully

employed and had a residence, while Eduardo admittedly had neither as of

the first day of trial.

On the first day of trial, Eduardo testified that he had prospects of

getting a job with the Indiana State Police and the U.S. Postal Service. He

also attested that there was a rental home available to him in Jefferson,

Indiana, which is approximately 30 miles from Corydon, Indiana (where

Eduardo’s family lives). On direct examination, he stated that his brother

had found the rental home on the internet, and that the landlord said it would

be available to Eduardo in two months. On cross-examination, however,

Eduardo admitted that his girlfriend was already living in this renthouse—a

fact he had not mentioned in explaining how he found it. When the trial

resumed approximately two weeks later, Eduardo testified that he had since

procured a job (working for his cousin’s poultry business) paying over

$70,000 per year, and had made arrangements to move into a rent house

owned by that same cousin.
2

Much of the testimony at trial regarded the parties’ consumption of

alcohol. This included testimony that Jamie was driving home drunk from a

Christmas party with the baby in the car, hydroplaned off of the road, and

the vehicle got stuck. She did not deny this in her testimony--even after

hearing Eduardo testify that she was slurring her speech when he talked to

her shortly after the incident, and even after Dr. Lobrano’s report was

introduced into evidence, wherein an interviewee who was an eyewitness to

the aftermath of the incident stated that Jamie was drunk at the time. Jamie’s

own mother testified to witnessing multiple instances of Jamie getting

heavily intoxicated and staying out at bars and clubs into the wee hours of

the morning, including when she traveled to Bossier from San Antonio

ostensibly to visit the child, and to Jamie going out drinking with other men

while married to Eduardo. Eduardo also testified to multiple instances of

Jamie getting heavily intoxicated, including at least one occasion wherein he

had to wake the baby up in the middle of the night and bring her with him to

pick up Jamie from a bar where she was drunk. Jamie admitted to her

drinking in her testimony, and her Facebook posts in evidence included

pictures of her drinking alcohol and her expression of delight in finding her

favorite alcoholic beverage for sale at Target.

Eduardo, on cross-examination, admitted that he too had driven while

under some degree of influence from alcohol with the baby in the vehicle,

although he claimed he was “not intoxicated” or least not “heavily

intoxicated.” A nonparty witness also testified to seeing Eduardo drive drunk

with the baby in the car. Furthermore, there was evidence that Eduardo got

heavily intoxicated on multiple occasions while sharing a residence with the

3

child, including hosting “fraternity-type” parties in the residence while the

baby was home.1

Additionally, Eduardo damaged his credibility by attempting to

mislead the court on the first day of trial in stating that his brother found his

(initial) prospective residence in Jefferson, Indiana, on the internet, and that

the landlord had assured that the property would be available when Eduardo

was ready to take residence there. Only upon cross-examination did Eduardo

admit that his current girlfriend was living in that residence.

The evidence gave no indication that either parent has pursued any

kind of treatment or rehabilitation for alcohol abuse.

Eduardo filed this appeal, wherein he makes the following assignment

of error: “the trial court committed legal error by allowing Jamie to relocate

the minor child’s residence to San Antonio, Texas without having filed a

request to relocate and by failing to consider the statutory relocation factors

[set forth in La. R.S. 9:355.14] in so ruling.” Eduardo asserts that the

judgment is a nullity because it reaches beyond the pleadings in, effectively,

granting Jamie relocation without her pleading it or satisfying her burden of

proof with respect thereto. Eduardo further argues that the judgment is

erroneous because Jamie did not provide him with statutory notice of

relocation. Finally, Eduardo contends that the facts proven at trial

established that he should have been named domiciliary parent under the

law.

1
The trial court likened the parents’ parties to “fraternity” parties, which we
interpret as a finding that the parties were festivals of alcohol-fueled debauchery.
4

DISCUSSION

The best interest of the child is paramount in all child custody matters.

“In a proceeding for divorce or thereafter, the court shall award custody of a

child in accordance with the best interest of the child.” (Emphasis added).

La. C.C. art. 131. To that end, La. C.C. art. 134 sets forth a non-exhaustive

list of factors which the trial court must consider in determining what

custodial arrangement is in the best interest of the child. La. R.S. 9:355.14

provides a similar list of factors to be considered in deciding an application

to relocate a child’s primary residence.

With those precepts in mind, the court must determine whether it is in

the child’s best interest for the parents to have joint custody, for one parent

to have sole custody, or for a nonparent to have custody. 2 In contested

custody matters, there is a presumption in favor of joint custody between the

parents. However, a court may award custody to a nonparent as provided in

La. C.C. art. 133:

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.

As previously mentioned, La. C.C. art. 134 provides a non-exclusive

list of factors a trial court must consider in determining the best interest of

the child in a custody proceeding:

2
“If the parents agree who is to have custody, the court shall award custody in
accordance with their agreement unless…the best interest of the child requires a different
award.…” La. C.C. art. 132. However, “in the absence of agreement [between the
parents], or if the agreement is not in the best interest of the child, the court shall award
custody to the parents jointly; however, if custody in one parent is shown by clear and
convincing evidence to serve the best interest of the child, the court shall award custody
to that parent.” Id.
5

(A)… [T]he court shall consider all relevant factors in
determining the best interest of the child, including:
(1) The potential for the child to be abused, as defined by
Children’s Code Article 603, which shall be the primary
consideration.
(2) The love, affection, and other emotional ties between
each party and the child.
(3) The capacity and disposition of each party to give the
child love, affection, and spiritual guidance and to
continue the education and rearing of the child.
(4) The capacity and disposition of each party to provide
the child with food, clothing, medical care, and other
material needs.
(5) The length of time the child has lived in a stable,
adequate environment, and the desirability of maintaining
continuity of that environment.
(6) The permanence, as a family unit, of the existing or
proposed custodial home or homes.
(7) The moral fitness of each party, insofar as it affects the
welfare of the child.
(8) The history of substance abuse, violence, or criminal
activity of any party.
(9) The mental and physical health of each party.
Evidence that an abused parent suffers from the effects of
past abuse by the other parent shall not be grounds for
denying that parent custody.
(10) The home, school, and community history of the
child.
(11) The reasonable preference of the child, if the court
deems the child to be of sufficient age to express a
preference.
(12) The willingness and ability of each party to facilitate
and encourage a close and continuing relationship between
the child and the other party, except when objectively
substantial evidence of specific abusive, reckless, or illegal
conduct has caused one party to have reasonable concerns
for the child’s safety or well-being while in the care of the
other party.
(13) The distance between the respective residences of the
parties.
(14) The responsibility for the care and rearing of the child
previously exercised by each party. (Emphasis added).

Statutory relocation factors. “The person proposing relocation has the

burden of proof that the proposed relocation is made in good faith and is in

the best interest of the child.” La. R.S. 9:355.10. In that pursuit, La. R.S.

6

9:355.14 states the following non-exhaustive list of factors to be considered

in determining whether relocation is in the best interest of the child:

A. In reaching its decision regarding a proposed
relocation, the court shall consider all relevant factors in
determining whether relocation is in the best interest of the
child, including the following:
(1) The nature, quality, extent of involvement, and
duration of the relationship of the child with the person
proposing relocation and with the non-relocating person,
siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and
the likely impact the relocation will have on the child’s
physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship
between the non-relocating person and the child through
suitable physical custody or visitation arrangements,
considering the logistics and financial circumstances of the
parties.
(4) The child’s views about the proposed relocation, taking
into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by
either the person seeking or the person opposing the
relocation, either to promote or thwart the relationship of
the child and the other party.
(6) How the relocation of the child will affect the general
quality of life for the child, including but not limited to
financial or emotional benefit and educational opportunity.
(7) The reasons of each person for seeking or opposing the
relocation.
(8) The current employment and economic circumstances
of each person and how the proposed relocation may affect
the circumstances of the child.
(9) The extent to which the objecting person has fulfilled
his financial obligations to the person seeking relocation,
including child support, spousal support, and community
property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or
violence by either the person seeking or the person
opposing relocation, including a consideration of the
severity of the conduct and the failure or success of any
attempts at rehabilitation.
(12) Any other factors affecting the best interest of the
child.
(13) The distance between the respective residences of the
parties.
(14) The responsibility for the care and rearing of the child
previously exercised by each party. (Emphasis added).

7

Furthermore, courts in custody proceedings have powers that go

beyond merely deciding the custody arrangement itself. For example, La.

R.S. 9:331.1, upon a showing of good cause in a contradictory hearing,

authorizes a court to order a party in a custody proceeding “to submit to

specified drug tests and the collection of hair, urine, tissue, and blood

samples as required by appropriate testing procedures within the time period

set by the court.” Additionally, courts have the authority to require parents to

undergo substance abuse and family counseling, and may, for example,

prohibit a parent from entering bars or similar establishments; satisfaction of

these requirements may be a condition of continued exercise of custody (or

visitation). Noland v. Noland, 16-641 (La. App. 3 Cir. 4/26/17), 218 So. 3d

215, writ denied, 17-1162 (La. 9/15/17), 225 So. 3d 479; Richardson v.

Richardson, 07-0430 (La. App. 4 Cir. 12/28/07), 974 So. 2d 761, 776. An

appellate court may amend the trial court judgment to impose such

requirements on the parents. Main v. Main, 19-503 (La. App. 5 Cir. 2/19/20),

292 So. 3d 135, writ denied, 20-00545 (La. 6/12/20), 307 So. 3d

1036, recon. not cons., 20-0545 (La. 7/2/20), 298 So. 3d 180; Richardson,

supra. Additionally, in any child custody proceeding, La. R.S. 9:345(A)

grants to the court the power to appoint, on its own motion, an attorney to

represent the child; however, such an appointment may be made only after a

contradictory hearing whereby the court finds such appointment would be in

the best interest of the child.

Standard of review

“In child custody cases, the decision of the trial court is to be given

great weight and overturned only where there is a clear abuse of discretion.”

Thompson v. Thompson, 532 So. 2d 101 (La. 1988). Likewise, in Gathen v.
8

Gathen, 10-2312 (La. 5/10/11), 66 So. 3d 1, the Louisiana Supreme Court

held that the trial court’s denial of a request to relocate a child is subject to

abuse of discretion review.

The court in Gathen, supra, also held:

[T]he trial court is not required to expressly analyze each
factor in its oral or written reasons for judgment in a
relocation case. Not only does La. R.S. 9:355.12 not
expressly require it, but a trial court is never required to
give oral reasons and is not required to give written
reasons for its “findings of fact and reasons for judgment”
unless requested by a party in most types of non-jury
cases…Further, if the legislature had intended the trial
court to expressly analyze each and every factor in either
oral or written reasons, it could have provided so.
Consequently, we find the trial court’s failure to expressly
analyze each factor does not constitute an error of law that
would allow de novo review. See Evans v. Lungrin, 97–
541 (La.2/6/98), 708 So. 2d 731, 735 (where one or more
legal errors interdict the fact-finding process, if the record
is complete the court of appeal must conduct a de
novo review of the record). The appropriate standard of
review, as stated in Curole, is that the trial court’s
relocation determination is entitled to great weight and
will not be overturned absent a clear showing of abuse of
discretion.

An error of law occurs when a court applies incorrect principles of

law. A legal error is reversible only if it results in prejudice to a party, i.e.,

only if it deprives a party of substantial rights and materially affects the

outcome of the case. Chambers v. Village of Moreauville, 11-898 (La.

1/21/12), 85 So. 3d 593.

Propriety of using La. C.C. art. 134 instead of La. R.S. 9:355.14

The trial court did not discuss the relocation-specific list of factors set

forth in La. R.S. 9:355.14, but instead, discussed the factors listed in La.

C.C. art. 134. Eduardo asserts that this constitutes reversible legal error.

Assuming for the purpose of argument that it was legal error for the trial

court conduct its analysis pursuant to La. C.C. 134 rather than the relocation-
9

specific La. R.S. 9:355.14, the decision still cannot be reversed on that

ground. Eduardo has completely failed to show that he was prejudiced by

this ostensible error. He has not pointed out any specific factor listed in La.

C.C. art. 134 that was, but should not have been, considered. Likewise, he

has not pointed out any specific factor in La. R.S. 9:355.14 that was not, but

should have been, considered.

Moreover, the trial court’s oral reasons for judgment indicate that it

considered all of the relevant factors in determining the custodial

arrangement that would be in the child’s best interest, regardless of which

list of factors was technically applicable. This is so, in substantial part,

because there is a great degree of overlap between La. C.C. art. 134 and La.

R.S. 9:355.14. On the facts of this case, it would make no difference whether

the court couched its decision in terms of the former or the latter provision.

The trial court’s judgment cannot be reversed without a showing of

prejudice. Accordingly, this assignment of error is without merit.

Best interest of the child

The trial court, in its oral reasons for judgment, discussed the impact,

if any, of each factor listed in La. C.C. art. 134. He found that Jamie would

provide better stability for the child because Jamie had a job and a residence

already in place, while Eduardo admittedly had neither as of the first day of

trial. The trial court viewed Eduardo’s subsequent testimony (that he had

obtained a job paying more than $70,000 with his cousin’s poultry business

and had arranged to move into a rent house owned by that same cousin)

doubtfully, and it was well within its discretion to do so.

We hold that the trial court did not abuse its discretion in granting

domiciliary parent status to Jamie rather than Eduardo, or in splitting their
10

physical custody between the school year (Jamie) and the summer

(Eduardo). The facts of this case are such that the trial court could have

decided in either parent’s favor without committing abuse of discretion.

However, our review does not end there.

The details of the parties’ alcohol abuse are deeply troubling. The

evidence shows both parents love the child and generally prioritize her best

interest over their own wants and desires. However, the evidence also

demonstrates that, due to their problems with alcohol abuse, both parents

have behaved selfishly with reckless disregard for the child’s safety and

well-being. Therefore, we further hold that the trial court erred in failing to

order the parties to take appropriate measures to address their alcohol abuse

problems. As provided in the decree, infra, we amend the trial court’s

judgment to impose those requirements on both parents. The trial court also

erred in not appointing an attorney to represent the child pursuant to La. R.S.

9:345.

On at least two occasions, the parents chose getting drunk over their

child’s interest in not riding with a drunk driver. They also held “fraternity

type” parties at their home while the baby was there, and multiple witnesses

testified to seeing both parents intoxicated on numerous occasions while the

child was living in their residence (and otherwise). The trial court’s oral

reasons for judgment reflect an astonishing lack of regard for the impact of

these behaviors on the child. Most importantly, the evidence inescapably

preponderates in favor of a finding that Jamie was driving drunk with the

baby in the car and hydroplaned off of the road, whereupon the vehicle got

11

stuck.3 There was ample evidence of other instances of Jamie’s alcohol

abuse, including corroboration by her own Facebook posts.4 These facts

show that Jamie obviously has an alcohol abuse problem, and has already

had significant negative consequences from it (i.e., recklessly putting her

baby’s life at risk by driving drunk with the baby in the vehicle), and the

evidence gave no indication that she has pursued any kind of treatment or

rehabilitation for her alcohol abuse problem.

Crucially, Eduardo, on cross-examination, admitted that he too had

driven while under some degree of influence of alcohol with the baby in the

vehicle, and there was independent testimony that he did in fact drive drunk

with the baby in the car. There was also abundant proof that he too got

heavily intoxicated on multiple occasions while he was sharing a residence

with the child.5 Eduardo has likewise failed to seek any treatment or

counseling for his alcohol abuse problem.

3
Jamie did not deny this in her testimony, even after hearing Eduardo testify that
he she was slurring her speech when he talked to her shortly after the incident, and even
after Dr. Lobrano’s report was introduced into evidence, wherein an interviewee who was
an eyewitness to the aftermath of the incident indicated that Jamie was drunk at the time.
4
Jamie’s own mother testified to witnessing multiple instances of Jamie getting
heavily intoxicated and staying out at bars and clubs well beyond midnight, including
when she traveled to Bossier from San Antonio supposedly to visit the child. Jamie’s
mother also testified to Jamie going out drinking with other men while married to
Eduardo. Likewise, Eduardo testified to multiple instances of Jamie getting heavily
intoxicated, including at least one occasion wherein he had to wake the baby up in the
middle of the night and bring her with him to pick up Jamie from a bar where she was
drunk.
Jamie admitted to drinking alcohol in her testimony, and her Facebook posts in
evidence included pictures of her drinking alcohol and her expression of delight in
finding her favorite alcoholic beverage for sale at Target.
5
Additionally, Eduardo attempted to mislead the court on the first day of trial in
stating that his brother found his (initial) proposed residence in Jefferson, Indiana, on the
internet, and that the landlord had assured that the property would be available when
Eduardo was ready to take residence there. Only on cross-examination did Eduardo admit
that his current girlfriend was living in that residence. It is severely unlikely that this was
a coincidence. Conversely, it is likely that he attempted to deceive the court into
believing that he would not be taking the child to live with his girlfriend if awarded
domiciliary custody in Indiana.

12

A parent who is heavily intoxicated cannot properly care for a child.

Only a parent with an alcohol abuse problem would drive drunk with the

baby in the vehicle. This Court orders both parents to never drink and drive

again, especially not with a child in the vehicle.

Both parents must already know that driving while intoxicated is a

crime (as defined in La. R.S. 14:98). They should also realize that their

parental rights can be terminated for “misconduct of the parent toward this

[the subject] child…which constitutes grossly negligent behavior below a

reasonable standard of human decency.” La. Ch.C. art. 1015(4). Driving

while heavily intoxicated with a baby in the car easily constitutes “grossly

negligent behavior below a reasonable standard of human decency.” Finally,

we remind the parents that sole custody can be awarded to nonparents upon

proof that parental custody would result in substantial harm to the child.

Jamie’s failure to plead for relocation to San Antonio

Eduardo alleges that the judgment awarding domiciliary parent status

to Jamie is a nullity because it, in effect, authorizes Jamie to relocate the

child’s domicile to San Antonio without Jamie having pled for relocation.

This argument is a “red herring.” Jamie specifically prayed that the court

award her domiciliary status. In his motion for relocation, Eduardo alleged

that Jamie is active-duty military and is stationed in San Antonio. Thus,

Jamie’s relocation of the child to San Antonio is within the scope of the

pleadings.

Notice of relocation

La. R.S. 9:355.4 states that, “[a] person proposing relocation of a

child’s principal residence shall notify any person recognized as a

parent…as required by R.S. 9:355.5.” In turn, La. R.S. 9:355.5 requires
13

notice to be sent by certified or registered mail, return receipt requested, or

delivered by commercial courier to the last known address of the parent

entitled to notice; generally, this notice must be given no later than the 60th

day before the date of the proposed relocation. La. R.S. 9:355.6 confers

discretion on the court regarding the impact of a failure to provide notice:

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.
(3) Sufficient cause to order the person proposing
relocation to pay reasonable expenses incurred by the
person objecting to the relocation.

La. R.S. 9:355.6 indicates that failure to give notice of intent to

relocate the child does not invalidate a judicially authorized relocation.

Failure to give notice is merely “a factor” that the trial court “may” consider

in deciding the relocation issue. Jamie’s failure to give statutory notice does

not render the court’s judgment in her favor erroneous in any way.

DECREE

The judgment of the trial court is AFFIRMED, subject to the

following AMENDMENTS. During their respective periods of physical

custody of the child, the parties are ordered to: (1) abstain completely and

continuously from using drugs or alcohol; and (2) submit to random

drug/alcohol screens at least monthly. The parties also shall undergo a

professional substance abuse evaluation, and shall participate in counseling

and treatment from a licensed professional provider, if recommended. The

parties shall also comply with all recommendations of the professional

14

substance abuse treatment provider, except as specifically permitted

otherwise by the court for good cause shown.

Additionally, this case is REMANDED to the trial court to appoint an

attorney to represent the child for the limited purpose of making this

judgment executory in the respective counties in which the parents reside.

All costs of this appeal are to be borne by Eduardo Granados.

However, the parties shall each be assessed one-half of the cost of the

attorney appointed to represent the child.

15