Rachelle Starrett Preuett v. Ira Anderson Preuett

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1060

RACHELLE STARRETT PREUETT

VERSUS

IRA ANDERSON PREUETT

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 16,679
HONORABLE W. PEYTON CUNNINGHAM, JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan and Shannon James
Gremillion, Judges.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

J. Ogden Middleton, II
1744 White Street
Alexandria, LA 71301
(318) 443-4377
COUNSEL FOR PLAINTIFF/APPELLEE:
Rachelle Starrett Preuett

Thomas D. Davenport, Jr.
The Davenport Firm
1628 Metro Drive
Alexandria, LA 71301
(318) 445-9696
COUNSEL FOR DEFENDANT/APPELLANT:
Ira Anderson Preuett

AMY, Judge.

In this custody matter, the parties had joint custody pursuant to a previous

considered decree. Mr. Preuett served as the domiciliary parent. He filed a rule to

clarify the judgment as a result of Ms. Preuett’s relocation, and Ms. Preuett filed a

response and a counter rule. Mr. Preuett filed exceptions of no cause of action, no

right of action, and vagueness. At the hearing on the exceptions, the trial court

denied the exceptions and modified the custody decree. Mr. Preuett appeals. For the

following reasons, we affirm the denial of the exceptions but reverse the modified

custody decree and remand for further proceedings.

Factual and Procedural Background

Rachelle Starrett Preuett and Ira Anderson Preuett were married; six children

were born of the marriage. The couple divorced and have been involved in litigation

for several years. On September 25, 2007, the trial court designated Mr. Preuett the

principal domiciliary parent of four of the five minor children1 and established a

schedule regarding Ms. Preuett’s physical custody of the minor children on weekends

and holidays. At the time of this judgment, Ms. Preuett had remarried, and her new

husband, Mr. Edwards, resided in Oregon. Ultimately, Ms. Preuett moved to Oregon

to live with her husband.

In response to her relocation, Mr. Preuett filed a Rule for Child Support and to

Clarify Stipulated Judgment2 for Joint Custody, wherein he asserted that:

1
The record indicates that the oldest son is no longer a minor, and the second oldest child,
Abbie Gail Preuett, though a minor, was not mentioned in the September 25, 2007 judgment.
2
In an order to supplement the record on appeal, the caption of the petition was changed to
reflect that the language “stipulated judgment” was replaced with “considered decree,”in light of the
fact that the September 25, 2007 custody determination was made by a judge after a thorough review
of evidence, exhibits, and testimony.

[t]he Judgment signed by this Court is lacking clarity and its functional
operation has caused a hardship between the parties. Hence, the Mover
seeks a clarification regarding the transportation of the minor children
to the State of Oregon as the Defendant-in-Rule has voluntarily moved
to that State and is seeking your Petitioner to provide for all cost of
same.

Ms. Preuett filed a Response to “Rule for Child Support and to Clarify

Stipulated Judgment as to Child Custody” and Counter-Rules for Modification of

Custody Judgment, Physical Custody Plan and for Calculation of Child Support with

Contested Motion to Continue Support Hearing. Regarding Ms. Preuett’s Counter-

Rules, Mr. Preuett filed peremptory exceptions of no cause of action and no right of

action and a dilatory exception of vagueness. On May 13, 2008, the trial court held

conferences with the parties’ attorneys in chambers and heard oral arguments relevant

to the exceptions. There is no indication that evidence, testimony, or stipulations

were presented. Thereafter, the trial court denied all three exceptions and modified

the September 25, 2007 custody decree by granting additional custodial time to the

mother during the summer months. Also, the trial court ordered that the judgment

include Abbie Gail Preuett despite the September 25, 2007 judgment’s exclusion of

her. Mr. Preuett appeals, asserting the following assignments of error:

(1) The Trial Court committed legal error by improperly modifying
the considered decree without applying the Bergeron standard.

(2) The Trial Court committed legal error by including Abbie Gail
Preuett in the September 25, 2007 Judgment without any evidence
or a determination of the best interest of the child.

(3) The Trial Court erred by failing to distinguish “visitation” from
“child custody” when the parties have joint custody.

Discussion

Mr. Preuett’s assignments of error, in sum, address whether the evidence

presented at the hearing was sufficient to support the trial court’s judgment. This

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argument surfaces as a result of the procedural setting of the case. The task before

the trial court on May 13, 2008 was to consider and rule upon the exceptions filed by

Mr. Preuett. No evidence was presented by the parties. The trial court, however, did

not rule only upon the exceptions; he ruled upon the merits of the rules filed by the

parties—a determination that requires the presentation of evidence. Insofar as this

procedural dynamic affects Mr. Preuett’s sufficiency argument, we address the fact

that the trial court exceeded the limited scope of the proceedings set before it on that

date, i.e., the exceptions.

It is clear from the court minutes,3 the parties’ references to the hearing in their

briefs,4 Mr. Preuett’s attorney’s reference to it at the hearing,5 the order that set the

hearing,6 and the Judgments on the Rules7 that the hearing, pursuant to notice, was

3
The minutes of the court for the May 13, 2008 hearing state: “This matter came before the
court [sic] Exception and No Cause of Action.”
4
Mr. Preuett’s brief provides, “The Appellant filed various exceptions to the Response with
said exceptions being set for hearing on May 13, 2008.” Rachelle Preuett’s brief contains a heading
entitled “The May 13, 2008 Hearing on Appellant’s Exceptions and Oral Ruling.”
5
Mr. Davenport, Mr. Preuett’s attorney, stated at the hearing, “Your Honor, we are here
today in response to my dilatory exception of vagueness and peremptory exceptions of no cause of
action and no right of action.”
6
The order that summoned Ms. Preuett into court on May 13, 2008, provided:

THE ABOVE MOTION CONSIDERED:

IT IS ORDERED that Plaintiff-in-Rule, RACHELLE STARRETT PREUETT
EDWARDS, do show cause, on the 13 day of May, 2008 at the hour of 1:30 [p.m.]
o’clock, why there should not be judgment in favor of Plaintiff-in-Rule/Defendant-in-
Reconvention, IRA PREUETT, as follows:

1. Sustaining these Exceptions and dismissing the demands of
RACHELLE STARRETT PREUETT EDWARDS, and at her cost;

2. Ordering the exception of vagueness and ambiguity be sustained and
accordingly, and that RACHELLE STARRETT PREUETT
EDWARDS be ordered to amend , particularizing the vague, general
and indefinite allegations contained in her rule, and that in default of
such amendment within a reasonable delay to be fixed by this Court,
that her rule be dismissed, with prejudice and at her cost;

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on the exceptions, not on the merits . The supreme court in Darville v. Texaco, Inc.,

447 So.2d 473, 474-75 (La.1984), stated:

The purpose of an exception of no cause of action is to determine
the sufficiency in law of the petition. The exception is triable on the
face of the papers and for the purposes of determining the issues raised
by the exception, the well pleaded facts in the petition must be accepted
as true. La.C.C.Pro. art. 927; Mayer v. Valentine Sugars, Inc., 444
So.2d 618 (La.1984); Haskins v. Clary, 346 So.2d 193 (La.1977). The
general rule applicable to a trial of such exception is that an exception
of no cause of action must be overruled unless the allegations of the
petition exclude every reasonable hypothesis other than the premise
upon which the defense is based; that is, unless the plaintiff has no cause
of action under any evidence admissible under the pleadings. Haskins,
supra at 195; West v. Ray, 210 La. 25, 26 So.2d 221 (1946).

In Owens v. Martin, 449 So.2d 448, 452 (La.1984), the supreme court further

provided that “[w]hen a Court can reasonably do so, it should maintain the petition

so as to afford a litigant an opportunity to present his evidence.”

In his assignments of error, Mr. Preuett asserts that the trial court erred in

modifying the custody decree in the absence of evidence or testimony. This lack of

evidence was a result of the hearing’s narrow scope. Because only the exceptions

were before the court, no evidence on the merits was presented. Moreover, when the

court signaled its intention to continue and consider the questions presented by the

3. Increasing child support to an amount in accordance with the
guidelines and Louisiana law;

4. Ordering that RACHELLE STARRETT PREUETT EDWARDS
produce to this court copies of her year 2006 to present Federal and
State Tax Returns;

5. Ordering this Motion be allowed;

6. Further for full, general, and equitable relief.
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The Judgments on Rules stated, “THIS MATTER CAME BEFORE THE COURT ON
MAY 13, 2008, on ‘Dilatory Exceptions of Vagueness and Peremptory Exceptions of No Cause of
Action and No Right of Action’ filed by Ira Preuett.”

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rules, Mr. Preuett objected.8 Overruling the objection, the trial court continued; again

the parties were not provided an opportunity to present evidence concerning the

physical custody plan. The trial court erred in changing the custody judgment

without hearing evidence on the issue. Accordingly, we reverse the judgment insofar

as it renders a modified custody decree, and we remand for further proceedings.

Exceptions of No Cause of Action, No Right of Action, and Vagueness

Insofar as Mr. Preuett’s assignments of error relate to the trial court’s rulings

on the exceptions, we review the record de novo to determine whether the exceptions

were correctly denied. See Indus. Cos., Inc. v. Durbin, 02-665, p. 6-7 (La.1/28/03),

837 So.2d 1207, 1213, wherein the supreme court instructed, “[i]n reviewing a trial

court’s ruling sustaining an exception of no cause of action, the appellate court and

this court should conduct a de novo review because the exception raises a question

of law and the trial court’s decision is based only on the sufficiency of the petition.”

See also Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, writ

denied, 01-2546 (La. 12/7/01), 803 So.2d 971, holding same for exception of no right

of action.

Mr. Preuett filed peremptory exceptions of no cause of action and no right of

action and a dilatory exception of vagueness. He primarily argued that Ms. Preuett’s

Counter-Rules did not allege sufficient facts to meet the heavy burden established by

Bergeron v. Bergeron, 492 So.2d 1193, (La.1986), wherein the supreme court held:

When a trial court has made a considered decree of permanent custody,
the party seeking a change bears the difficult burden of proving that the
continuation of the present custody situation is so deleterious to the

8
Mr. Preuett’s attorney objected to a discussion of the merits of the custody matter, stating,
“Objection, Your Honor, that’s outside of the scope of the pleading we are here for today and it’s
beyond the pleadings and everything we are supposed to be up here for today.” The trial court
overruled the objection.

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child as to justify a modification of the custody decree, or of proving by
clear and convincing evidence that the harm likely to be caused by a
change of environment is substantially outweighed by its advantages to
the child.

Mr. Preuett contended that “[t]here are no allegations of fact” in Ms. Preuett’s

Counter-Rules that would meet the requirements of Bergeron. He asserts that Ms.

Preuett, instead, “merely requested the physical custody plan be modified to

recognize the geographic distance between the parties.”

In ruling on the sufficiency of Ms. Preuett’s pleading, it is necessary to look at

its language. Her Counter-Rule states in pertinent part:

Plaintiff in Rule avers that the September 25, 2007’s visitation
schedule needs to be modified, as it did not and does not take into
account the fact that the plaintiff in rule had remarried at the time of the
prior judgment and that her husband was already at the time employed
in the State of Oregon, where plaintiff in rule understandably now
resides with her new spouse.

Not only have disagreements arisen between the plaintiff in rule
and defendant as to the expenses associated with the travel costs flowing
from the geographical distance between the parents, plaintiff in rule
avers that the defendant has taken the position that the minor children
shall not enjoy visitation with the plaintiff in rule in Oregon at all.

Plaintiff avers that the defendant has not only expressed his
opposition to visitation directly to the plaintiff, but has indeed taken up
this exact issue with the minor children, informing them that they will
not be visiting this summer with their mother in Oregon.

The fifth circuit in Menge v. Menge, 545 So.2d 674, 676 (La.App. 5 Cir. 1989)

held:

[I]n order to maintain a cause of action in a modification of a considered
custody decree, the movant must allege some circumstances within the
framework of Bergeron---that is, movant must aver in at least general
terms that continuation of the present custody is so deleterious to the
child as to justify a modification, or that the harm likely to be caused by
a change of environment is substantially outweighed by its advantages
to the child.

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Based on the allegations in Ms. Preuett’s petition, we do not find that the trial

court erred in denying the exceptions. Her petition, asserting that the previous

visitation schedule did not account for her relocation and that Mr. Preuett will not

allow the children to visit her in Oregon, put forth, at least in general terms, facts

sufficient to meet the Bergeron standard. It is evident from the face of her pleading

that maintaining the current custody decree is deleterious to the children, in light of

the fact that it provides for each parent to have physical custody of the minor children

on a weekly basis—a feat that is unworkable considering the parents’ locations.

Accordingly, the denial of the exceptions is affirmed.

DECREE

For the foregoing reasons, the denial of the exceptions is affirmed, but the

judgment is reversed insofar as it modifies the September 25, 2007 custody decree.

The matter is remanded for further proceedings. We assess costs of this proceeding

equally between the appellant, Ira Preuett, and the appellee, Rachelle Preuett.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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