Mehe Hafaiedh Lambert v. Charles Willis Fontenot

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-210

MEHE HAFAIEDH LAMBERT

VERSUS

CHARLES WILLIE FONTENOT

consolidated with 13-211

CHARLES WILLIE FONTENOT

VERSUS

MEHE HAFAIEDH LAMBERT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20101765 C/W 20102545
HONORABLE SUSAN THEALL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett
and Shannon J. Gremillion, Judges.

REVERSED AND REMANDED.
Anne E. Watson
Attorney at Law
232 North Liberty Street
Opelousas, LA 70570
(337) 942-9790
COUNSEL FOR APPELLANT:
Mehe Hafaiedh Lambert

Robin J. Magee
Oats & Hudson
100 E. Vermilion Street, Suite 400
Lafayette, LA 70501
(337) 233-1100
COUNSEL FOR APPELLEE:
Charles Willie Fontenot

PICKETT, Judge.

The trial court found that a previous custody decree in favor of Charles

Willie Fontenot was a considered decree, and dismissed Mehe Hafaiedh Lambert’s

rule to change custody by maintaining an exception of no cause of action filed by

Charles Willie Fontenot. Ms. Lambert now appeals.

STATEMENT OF THE CASE

Ms. Lambert and Mr. Fontenot have one child, Charles-Amir Hafaiedh, born

August 8, 2008. The parties were never married. Litigation over the custody of

their son began in March 2010. On August 12, 2010, the original trial judge

assigned to this case, Judge Phyllis Keaty, awarded joint custody to Ms. Lambert

and Mr. Fontenot pending a custody evaluation by an expert psychologist. Within

two weeks, Mr. Fontenot filed an ex parte petition seeking custody of Amir. He

alleged that Ms. Lambert’s living situation was inadequate. The trial court granted

custody to Mr. Fontenot. Ms. Lambert countered with a motion for contempt,

alleging a violation of the judge’s original order. Before a hearing could be held

on these motions, both parties dismissed their petitions and returned to the

temporary custody arrangement, pending a custody evaluation by a different

expert.

Before the report of the new expert was completed, a hearing to consider Mr.

Fontenot’s Petition for Permanent Custody began on March 17, 2011. Because

Judge Keaty had been elected to this court, the hearing was held before Judge

Anne Simon, the pro tempore judge appointed to fill the vacancy pending an

election. At this hearing, Mr. Fontenot was represented by counsel, while Ms.

Lambert was not. Mr. Fontenot introduced evidence from Ms. Lambert’s older

son’s grandmother, his own mother, and a private investigator. Mr. Fontenot and

Ms. Lambert testified, and the custody evaluation from Dr. Amy Cavanaugh was

introduced when the hearing was continued on April 18, 2011.

At the conclusion of the hearing, Judge Simon urged the parties once again

to enter into an agreement about who should have custody. When Ms. Lambert

and counsel for Mr. Fontenot indicated that they could not reach an agreement,

Judge Simon granted joint custody and named Mr. Fontenot the domiciliary parent.

Judge Simon specifically stated that she did not want the judgment to be classified

as a considered decree. Mr. Fontenot’s counsel drafted a judgment including

language that the judgment was not to be a considered decree, which the trial court

signed on April 21, 2011. Neither party appealed that judgment. It is, therefore, a

final judgment.

On March 12, 2012, Mr. Fontenot filed a Motion to Amend Judgment,

seeking to delete the language in the April 21, 2011 judgment stating that it was

not a considered decree. Judge Susan Theall, who had been elected to replace

Judge Keaty, summarily denied the motion, citing the minute entry reflecting that

Judge Simon’s judgment was not to be considered a final custody decree.

On July 12, 2012, Ms. Lambert filed a Rule to Change Domiciliary Parent.

In response, Mr. Fontenot filed peremptory exceptions of no right of action and no

cause of action, alleging that the previous judgment was a considered decree and

Ms. Lambert failed to allege a material change in circumstances as required by

Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Judge Theall held a hearing on

the exceptions on September 27, 2012. After taking the matter under advisement,

she granted the peremptory exception of no cause of action and dismissed Ms.

Lambert’s Rule to Change Domiciliary Parent. Ms. Lambert now appeals.

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ASSIGNMENTS OF ERROR

Ms. Lambert asserts three assignments of error:

1. Did the trial court commit legal error in granting the Exception of No
Cause of Action and No Right of Action filed by Charles Willie
Fontenot thereby dismissing Mehe Hafaiedh Lambert’s Rule to
Change Domiciliary Parent as not meeting the Bergeron v. Bergeron
standard?

2. Did the Trial Court commit legal error by refusing to apply the final
Judgment of the Honorable Judge Simon (in her capacity as Ad Hoc
[sic] Judge) as the “law of the case” when Judge Simon specifically
signed a Custody Judgment that specifically stated that the matter was
“not to be a considered decree,” and said Judgment was never
appealed by either party?

3. Did the Trial Court err when it effectively amended and/or modified
Judge Simon’s final Judgment by not following it because the Trial
Court thought it was wrong, although the Judgment was never
appealed?

DISCUSSION

The supreme court discussed the standard of review of an exception of no

cause of action in Fink v. Bryant, 01-0987, pp. 3-4 (La.11/29/01), 801 So.2d 346,

348-349 (citations omitted):

The function of the peremptory exception of no cause of action
is to question whether the law extends a remedy to anyone under the
factual allegations of the petition. The peremptory exception of no
cause of action is designed to test the legal sufficiency of the petition
by determining whether [the] plaintiff is afforded a remedy in law
based on the facts alleged in the pleading. No evidence may be
introduced to support or controvert the objection that the petition fails
to state a cause of action. 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. In reviewing a trial court’s ruling sustaining an exception of no
cause of action, the appellate court and this Court should subject the
case to 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. Simply stated, a petition should not be dismissed for failure
to state a cause of action unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of any claim which would
entitle him to relief.

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Pursuant to Bergeron, the burden of proof for the party petitioning for a

change of custody “is to show that the continuation of the present custody is so

deleterious to the child so as to justify the modification, or that the harm likely to

be caused by a change of environment is substantially outweighed by its

advantages to the child.” White v. Fetzer, 97-1266 (La.App. 3 Cir. 3/6/98), 707

So.2d 1377, 1380, writ denied, 98-931 (La. 5/15/98), 719 So.2d 466. Ms. Lambert

argues that because Judge Simon specifically held that the judgment she rendered

was not a considered decree, she does not have to meet this heightened burden.

Absent the language claiming it is not a considered decree, all parties agree

that the judgment rendered by Judge Simon is clearly a considered decree. The

face of the judgment, however, states that it is not to be treated as such. Mr.

Fontenot did not appeal that judgment, despite Judge Simon’s invitation for him to

do so while ruling from the bench. Mr. Fontenot’s motion to amend the judgment,

and later the exception of no right of action, constitute an attempt to perfect an out

of time appeal of a final judgment.

Ms. Lambert, who was not represented by counsel at the March/April 2011

hearing, is entitled to rely on the terms of the judgment issued by Judge Simon.

Mr. Fontenot’s counsel drafted the judgment to conform to the trial court’s oral

ruling and knew that there was a question about whether the judgment was legally

correct, but failed to perfect an appeal. Judge Theall properly thwarted his attempt

to amend the judgment in March 2012. Mr. Fontenot, by virtue of an exception of

no cause of action, cannot subsequently seek the same relief. The judgment of the

trial court is reversed.

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CONCLUSION

The judgment of the trial court granting Mr. Fontenot’s peremptory

exception of no cause of action is reversed. The exception is denied. This case is

remanded for further proceedings consistent with this opinion. Costs of this appeal

are assessed to Mr. Fontenot.

REVERSED AND REMANDED.

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