Grady P. Galland v. Heidi M. Galland

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-343

GRADY P. GALLAND

VERSUS

HEIDI M. GALLAND

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2009-4104-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters,
Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, dissents and assigns reasons.
Gremillion, J., dissents for the reasons assigned by Chief Judge Thibodeaux.

Brian K. Thompson
2915 Jackson Street
Alexandria, LA 71301
(318) 473-0052
COUNSEL FOR DEFENDANT/APPELLANT:
Heidi M. Galland

Cory P. Roy
Roy & Scott Law Offices
Post Office Box 544
Marksville, LA 71351
(318) 240-7800
COUNSEL FOR PLAINTIFF/APPELLEE:
Grady P. Galland

AMY, Judge.

In this custody dispute, the parents could not agree on either a custody

arrangement or which school their children would attend. The mother filed a

reconventional demand, seeking allegedly unpaid child support and seeking to

make a previous cost award executory. After a hearing, the trial court awarded

joint custody, with the father having domiciliary status, and establishing a physical

custody schedule. The trial court also directed that the children be enrolled in the

school proposed by the father. The mother appeals. For the following reasons, we

affirm.

Factual and Procedural Background

The parties to this litigation, Grady P. Galland and Heidi M. Galland, have

two minor children together, Colin and Cadence.1 The procedural history of this

matter was set out in a previous appeal, Galland v. Galland, 12-1075, pp. 2-4

(La.App. 3 Cir. 3/20/13), 117 So.3d 105, 106-7, reh’g granted (for the limited

purpose of clarifying previous judgment), which stated:

The parties entered into a stipulated Consent Judgment dated
December 23, 2009, awarding them joint custody and co-domiciliary
status. The parties shared physical custody on a week-by-week (7/7)
basis. At the time of the divorce, both parties lived in Plaucheville,
Avoyelles Parish, Louisiana. Heidi subsequently moved to
Alexandria, Louisiana [in nearby Rapides Parish]. Shortly after Heidi
moved, Grady sought and obtained an order from the trial court that
Colin would attend St. Mary’s for the 2010-2011 school year. Colin
attended St. Mary’s for the 2010-2011 school year. The parties
continued to share custody on a 7/7 basis despite the increased
distance between their homes.

In January 2011, Grady filed a Motion to Compel
Psychological Evaluations of both parties and their children to
determine the optimal custodial and school arrangements. In June

1
Ms. Galland is also referred to as Ms. Mahl, her maiden name, in the record.
Additionally, the record contains various spellings of Colin and Cadence’s names. We use the
spellings contained in the petition.

2011, Grady filed a Motion for Contempt because Heidi was
contemplating enrolling Colin in Nachman despite the previous
judgment allowing him to attend St. Mary’s until further order of the
court. In July 2011, Heidi filed a Rule for Declaration on School
Attendance (“Rule to Declare School”), seeking an order allowing
Colin to attend Nachman for the 2011-2012 school year. The trial
court deferred these various motions and rules pending the results of
the independent psychological evaluation ordered by [the] court.
Indeed, the trial court ordered Dr. Daniel Lonowski to evaluate the
parents and the children in the fall of 2011.

While the trial court motions were pending, Heidi and Grady
reached a verbal agreement whereby Colin would attend Nachman for
the 2011-2012 school year. The parties also verbally agreed to
modify the shared 7/7 custody plan such that the children remained
with Heidi during the school week. The parties sought to minimize
travel time and maximize stability for the children. At that time,
Colin attended Nachman, and Cadence attended Calvary Daycare in
Alexandria. Grady later changed his mind about Colin’s schooling,
feeling that Colin “would be more comfortable at St. Mary’s.”
Nevertheless, Colin finished the school year at Nachman, achieving
the A/B Honor Roll.

....

In its written Reasons for Ruling, the trial court rendered a
Considered Decree, granting the parties joint custody on a “9/3 split”
and appointing Grady the primary domiciliary parent. Specifically,
the trial court ordered the children to reside with Grady during the
school week, with Heidi receiving visitation every other weekend,
with an additional two evenings during the month for dinner. The
trial court granted Heidi increased visitation during the summer
months. The Considered Decree further ordered both children to
attend St. Mary’s in Cottonport.

Finding that the trial court went beyond the scope of the pleadings in making

a custody determination, the panel reversed the decision of the trial court and

ordered that “the parties shall have co-domiciliary status and shall share physical

custody on a week-by-week (7/7) basis[,]” and that the children be enrolled at

Nachman for the 2013-2014 school year. Id. at 109. The record indicates that the

parties agreed that, because there was a short period of time left in the school year,

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Colin should finish the 2012-2013 year at St. Mary’s. However, the children

began the 2013-2014 school year at Nachman as ordered.

Thereafter, the trial court held hearings on the issues of child custody and

Ms. Galland’s reconventional demand. After multiple days of testimony, the trial

court determined that Mr. Galland should have domiciliary custody. Further, the

trial court ordered that, during the school year, Ms. Galland would have physical

custody on alternating weekends, with a “supper night” during the week, and

during the summer months, the parties would split physical custody on a “7 and 7”

basis, with Ms. Galland having one 14-day vacation period. Further, the trial court

ordered that the children attend St. Mary’s. Additionally, the trial court denied Ms.

Galland’s reconventional demand, which sought payment of child support

allegedly owed by Mr. Galland and to make executory costs associated with the

previous appeal.

Ms. Galland appeals, asserting as error that:

1. The trial court abused its discretion by permitting ex parte
communications and documents not admitted into evidence to
influence its decision, and failing to perform its duties without bias
and prejudice.

2. The trial court abused its discretion in finding that the twelve (12)
non-exclusive factors provided in Louisiana Code of Civil
Procedure Article 134 [sic] favored designating Appellee-father as
domiciliary parent of the parties’ two minor children and ordering
them to attend school in the Appelle[e]-father’s home parish when
the evidence presented proved that it is in the best interest of the
children for Appellant-mother to continue acting as the domiciliary
parent and for the child to attend school in the mother’s home
parish.

3. The trial court abused its discretion by denying the Appellant-
mother’s request, without any reason, to place Appellee-father in
arrears for his failure to pay child support since July 2012 in
violation of the December 23, 2009 Consent Judgment on Rule,
signed by the trial court.

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4. The trial court abused its discretion by denying Appellant-mother’s
request, without any reason, to make executory and payable the
amount of the appeal costs assessed to Appellee-father by this
Court in its March 20, 2013 opinion reversing the trial court’s July
2012 ruling in this matter.

Discussion

Allegations of Bias and Consideration of Evidence Outside the Record

Ms. Galland first contends that the trial court was biased against her. In

support of this argument, she points to the trial court’s observation that “talk on the

street” was that she had made disparaging comments about the trial court and the

trial court’s questioning of her regarding recordings she made of conversations

between her and Mr. Galland. Ms. Galland also points to the trial court’s

questioning of witnesses and comments concerning the witness testimony and his

own life experience. Further, Ms. Galland alleges that the trial court erred in

relying on documents which were not admitted into evidence, in particular the

deposition of one of the counselors, Dr. Karin Ebersohn.

As an initial observation, we note that Ms. Galland’s accusations regarding

bias were not presented to the trial court within the context of a motion to recuse.

One of the grounds for recusal is when the judge is “biased, prejudiced, or

interested in the cause or its outcome or biased or prejudiced toward or against the

parties or the parties’ attorneys or any witness to such an extent that he would be

unable to conduct fair and impartial proceedings.” La.Code Civ.P. art. 151(A)(4).

The procedure for recusal requires that a motion to recuse “shall be filed prior to

trial or hearing unless the party discovers the facts constituting the ground for

recusal thereafter, in which event it shall be filed immediately after these facts are

discovered, but prior to judgment.” La.Code Civ.P. art. 154. Where a party claims

that the trial court was biased but fails to file a motion to recuse, this court has

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previously held that the issue may not be considered on appeal. Campbell v. Nat’l

Union Fire Ins. Co., 92-592 (La.App. 3 Cir. 12/7/94), 647 So.2d 569.

Our review of the record shows that the trial of this matter was on three

separate days spread out over the course of a period of more than two months.

Although the trial court issued oral reasons for judgment on October 31, 2013,

formal judgment was not signed by the trial court until December 19, 2013. See

Radcliffe 10, LLC v. Zip Tube Sys, of La., 06-128 (La. 11/3/06), 942 So.2d 1071.

Further, Ms. Galland’s allegations of bias primarily stem from actions taken by the

trial court during the trial of this matter. Thus, Ms. Galland had sufficient

opportunity to discover the facts she alleges are possible grounds for recusation

and to file a motion to recuse, if warranted, within the time periods contemplated

in La.Code Civ.P. art. 154. Accordingly, because this matter was not raised below,

through a motion to recuse, we do not consider this issue for the first time on

appeal. Campbell, 647 So.2d 569.

With regard to Ms. Galland’s allegations that the trial court considered

documents outside the record, in particular, the deposition of Dr. Ebersohn, our

review of the record shows that, in its reasons for ruling, the trial court stated that

“we have the deposition testimony of Dr. Ebershon[sic], which I have reviewed in

this case.” The trial court later states that on “page 3” Dr. Ebersohn noted that the

“children wanted to stay … at least Colin at St. Mary. Not happy at Nachman.

Felt like he was being picked on at school.” Our review of the record indicates that

Dr. Ebersohn’s report (which included progress notes) was admitted into evidence,

but not her deposition. 2 Although it is unclear from the record whether Dr.

2
In his sur-reply brief, Mr. Galland has attached several pages of Dr. Ebersohn’s
deposition in support of his argument that “page 3” of Dr. Ebersohn’s deposition consists of

5

Ebersohn’s deposition was actually available to the trial court, we observe that the

information that Ms. Galland complains of in her brief is contained in Dr.

Ebersohn’s report (e.g., in regards to Nachman: “[Colin] feels that people pick at

him. He named 6 incidents that made him feel uncomfortable.”). Further, we

observe that the trial court issued lengthy reasons for judgment, of which Dr.

Ebersohn’s observations constituted only a small part. Accordingly, even if the

trial court erroneously considered Dr. Ebersohn’s deposition, we find any such

error harmless. See Midland Funding LLC v. Kelly, 11-659 (La.App. 4 Cir.

12/7/11), 81 So.3d 84.

Custody Determination / Article 134 Factors

Ms. Galland’s primary complaint on appeal is that the trial court erred in

awarding domiciliary custody to Mr. Galland and directing that the children attend

school in Avoyelles Parish. Ms. Galland contends that the trial court improperly

weighed the evidence and testimony presented at trial. According to Ms. Galland,

almost every one of the “best interest” factors contained in La.Civ.Code art. 134

weighs in her favor, and, in support of that argument, she points to the testimony of

Dr. Lonowski, who recommended that the children be placed with Ms. Galland;

Mr. Galland’s lack of religiousness; the animosity and inability to communicate

between the parents and their respective families; the superiority of the children’s

education in Rapides Parish; and Ms. Galland’s contention that she had been

primarily responsible for the children since they were born.

Even if it would have weighed the evidence differently, an appellate court

“boilerplate” language and not testimony. However, we note that the appellate court may not
consider evidence which is not in the record on appeal and cannot receive new evidence. Reese v.
Dresser Valve Indus., 10-241 (La.App. 3 Cir. 10/6/10), 48 So.3d 406. Since documents attached
to appellate briefs are not part of the appellate record, the appellate court may not consider those
documents if they are not included in the record on appeal. Id.

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cannot set aside the trial court’s factual findings unless they are manifestly

erroneous or clearly wrong. Stewart v. Stewart, 11-1334 (La.App. 3 Cir. 3/7/12),

86 So.3d 148. Further, the trial court’s custody determination is entitled to great

weight and will not be reversed absent an abuse of discretion. Pepiton v. Turner,

13-1199 (La.App. 3 Cir. 3/5/14), 134 So.3d 160.

The trial court’s award of custody shall be made in accordance with the best

interest of the child. La.Civ. Code art. 131. Pursuant to La.Civ. Code. art. 134:

The court shall consider all relevant factors in determining the
best interest of the child. Such factors may include:

(1) The love, affection, and other emotional ties between each
party and the child.

(2) 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.

(3) The capacity and disposition of each party to provide the
child with food, clothing, medical care, and other material needs.

(4) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of that
environment.

(5) The permanence, as a family unit, of the existing or
proposed custodial home or homes.

(6) The moral fitness of each party, insofar as it affects the
welfare of the child.

(7) The mental and physical health of each party.

(8) The home, school, and community history of the child.

(9) The reasonable preference of the child, if the court deems
the child to be of sufficient age to express a preference.

(10) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and
the other party.

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(11) The distance between the respective residences of the
parties.

(12) The responsibility for the care and rearing of the child
previously exercised by each party.

The trial court is not required to make a mechanical evaluation of all of the

factors listed in Article 134. Stewart, 86 So.3d 148. Nor is it bound to give more

weight to one factor over another; the relative weight of each factor is left to the

discretion of the trial court. Harvey v. Harvey, 13-81 (La.App. 3 Cir. 6/5/13), 133

So.3d 1, writ denied, 13-1600 (La. 7/22/13), 119 So.3d 596.

Our review of the record shows that the trial court issued lengthy and well-

supported oral findings of fact in making its custody determination. Therein, the

trial court addressed the Article 134 factors, and found that many of the factors

were “absolutely equal[,]” although several of the factors weighed in favor of the

father. The trial court also noted that neither Ms. Galland nor Mr. Galland was

perfect, and that both parents had “made some mistakes.” The trial court found

that both parents were equally to blame for the lack of encouragement of a close,

continuing relationship with the other party. With regard to Mr. Galland, the trial

court faulted him for an incident involving Colin’s cell phone and for drinking

alcohol at a barbeque where Colin fell and bruised his arm. With regard to Ms.

Galland, the trial court found that both she and Mr. Galland were “good parents,”

but that she lost much of her credibility and is “opportunistic and manipulative.”

In particular, the trial court pointed out that Ms. Galland’s testimony was directly

contradicted on two occasions by her sworn testimony in another pending matter,

that she testified that she could take breaks from her job whenever it was needed

but that she failed to schedule a counseling session with the children’s teacher, and

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that she attempted to record Mr. Galland in “an obvious attempt by her to

manipulate him and extort him or trap him in an unfair manner.”

The majority of Ms. Galland’s arguments concern the trial court’s findings

of fact or determinations concerning the weight of the evidence—determinations

which are well within the trial court’s purview and will not be disturbed by this

court absent manifest error or an abuse of discretion, as appropriate. See Stewart,

86 So.3d 148; Pepiton, 134 So.3d 160. Although Ms. Galland argues that the trial

court’s determination with regard to almost every one of these factors was

erroneous, our review of the record reveals adequate support for the trial court’s

findings of fact. Further, we find no abuse of discretion in the trial court’s

weighing of the evidence or award of custody. For example, although Ms. Galland

complains that the trial court erred in failing to consider Mr. Galland’s lack of

religiousness, the record shows that, although Mr. Galland stated that he is not a

churchgoer, he felt that it was important for the children to have a religious

foundation, and that St. Mary’s, a Catholic school, did a “good job” in that regard.

In making its custody determination, the trial court specifically referenced that

testimony with regard to the parties’ capacity “to give the child love, affection, and

spiritual guidance[.]” La.Civ.Code art. 134(2).

Accordingly, we find no merit to Ms. Galland’s assignment of error in this

regard.

Unpaid Child Support and Court Costs

Ms. Galland asserts that the trial court erred in denying her reconventional

demand, which sought allegedly unpaid child support and to make executory the

appeal costs associated with the previous appeal, without giving any reasons. Ms.

Galland’s argument herein consists of two sentences which essentially reiterates

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her assignment of error. Of note, Ms. Galland cites no codal article, statute, rule,

or case which supports her argument. Louisiana Uniform Rules—Courts of

Appeal, Rule 2-12.4(B)(4) requires that “[a]ll assignments of error and issues for

appeal must be briefed. The court may consider as abandoned any assignment of

error or issue for review which has not been briefed.” Restating an assignment of

error without argument or citation without authority does not constitute briefing.

Cormier v. La. Farm Bureau Cas. Ins. Co., 12-892 (La.App. 3 Cir. 2/6/13), 109

So.3d 509, writ denied, 13-427 (La. 4/5/13), 110 So.3d 596. Accordingly, we do

not consider Ms. Galland’s arguments in this regard.

DECREE

For the foregoing reasons, the judgment of the trial court signed on

December 19, 2013, is affirmed. Costs of this appeal are assessed to the appellant,

Heidi M. Galland.

AFFIRMED.

10

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-343

GRADY P. GALLAND

VERSUS

HEIDI M. GALLAND

THIBODEAUX, Chief Judge, dissenting.

I dissent from the majority’s decision to affirm the judgment of the trial

court awarding domiciliary status to Mr. Galland.

Dr. Daniel Lonowski testified as an expert in clinical psychology. He

conducted an evaluation of all of the parties in November 2011. He testified that

his reports and conclusions were as valid at the time of this custody trial as they

were in November 2011. He reached this conclusion despite being questioned

about the potential impact of Mrs. Galland pleading guilty to disturbing the peace

and having a pending charge of cruelty to the infirm. He further based his

conclusion despite his knowledge of Mr. Galland’s being accused of physical

abuse of the child. Because of the volatility of the relationship between Mrs.

Galland and the paternal grandparents, he was not surprised by the criminal

charges, and he could have predicted the spanking of the minor child because of

his characterization of Mr. Galland as being “emotionally reactive in conflict

situations.”

The trial judge observed that “Dr. Lonowski had thorough reports based on

his interview with all the parties.” He further observed that Dr. Lonowski was “the

most important witness on the case.” The trial judge did not give any weight

whatsoever to Dr. Lonowski’s findings despite Dr. Lonowski being “the most

important witness on the case.” Dr. Lonowski was not contradicted. It is

axiomatic that “the trier of fact should accept as true the uncontradicted testimony

of a plaintiff witness, absent a sound reason for his rejection.” Johnson v. Ins. Co.

N. Am., 454 So.2d 1113, 1117 (La.1984). The trial court had no sound reason for

the failure to consider Dr. Lonowski’s testimony, and did not articulate a reason.

Dr. Lonowski testified that Mr. Galland “would tend to be reactive in the

face of novelty . . . emotionally reactive in conflict situations.” Certainly, the long

history of animosity and litigation between these parents suggests a high potential

for “conflict situations.” Mr. Galland, according to Dr. Lonowski, “could engage

in somewhat devious maneuvers . . . in order to achieve his goals,” and “he can

become quite impatient under stress.”

Moreover, Dr. Lonowski unequivocally testifed as follows:

Q. Can you explain where that recommenation came from
other then. . .

A. It came from my impression from all four parties. The
children, the observation of the children with both parents
seemed relatively equal in terms of the affection displayed, the
attention, the management of the children in the observation
period. Their perceptions of the children another, the way the
children related to each of their parents, the parenting stress
index indicated that both parents were experiencing normal
parenting stress, they could manage their children well,
although with perhaps different styles of parenting, that was the
crux of their conflict while in their marriage as well as after
their marriage. So, putting all that together there was no
psychological disorder discerned from each parent, they had
certain different personality styles, he’s more of a risk taker
caviler [sic], shoot from the hip, she’s more compulsive and
organized and perhaps a little rigid in terms of her outlook in
life and so those two personalities don’t work very well,
obviously it didn’t work for their marriage, they didn’t know
how to make that blend, and didn’t work in terms of their
parenting styles so, it seemed to me that the tender ages of the
children, the fact that they were that age and perhaps needed
more of the maternal influence as well, but not necessarily
because I think both parents could meet the children’s needs,
but I think, I can’t specifically state any one particular factor
that lent itself to the mother having domiciliary custody except
that it just, the feel of it from all the data suggested that that
would be best for the kids.

2

Q: So no any one particular factor, but a cumulative effect of
your evaluation?

A: Right. Some of these things get close, they tend to get
close and I’m not sure if an evaluator can always dismiss the
fact, raised by the momma and the tender age of the children,
that they perhaps need a maternal influence early on, that may
have had a factor in it.

I am cognizant that a trial court has discretion in child custody matters.

However, that discretion is not immutable and must be based on sound judgment

after a consideration of the entire record. I am convinced that the trial court abused

its discretion in awarding Mr. Galland domicilary status based on the foregoing

reasons. I would reverse the judgment of the trial court and remand for the

implementation of a Joint Custody Order.

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