Pauline Moss Rodock v. Brad Allen Pommier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-809

PAULINE MOSS RODOCK

VERSUS

BRAD ALLEN POMMIER

**********

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 79,820 Div. B
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED IN PART, REVERSED IN PART, AND PARTIALLY
RENDERED MOOT.

E. Grey Burnes Talley
Burnes , Burnes & Talley
Post Office Box 650
Alexandria, Louisiana 71309-0650
(318) 442-5231
COUNSEL FOR PLAINTIFF/APPELLANT:
Pauline Moss Rodock

Elvin C. Fontenot, Jr.
Attorney at Law
110 East Texas Street
Leesville, Louisiana 71446
(337) 239-2684
COUNSEL FOR DEFENDANT/APPELLEE:
Brad Allen Pommier

Misty Dawn Smith
Dowden & Hicks, L.L.P.
116 East Lula Street
Leesville, Louisiana 71446
(337) 238-2800
COUNSEL FOR OTHER APPELLEE:
Minor Child

CONERY, Judge.

Pauline Moss Rodock 1 (Pauline) appeals the January 26, 2016 judgment

denying her motion to recuse the trial judge in this custody and relocation dispute

involving her thirteen year old minor son, J.P. She also appeals the February 23,

2016 judgment denying her request to relocate J.P. to the State of Kansas, and the

trial judge’s finding of contempt of court ruling against her. She further appeals

the trial court’s award of $3,800 in attorney fees to her former husband and the

child’s father, Brad Allen Pommier (Brad), pursuant to La.R.S. 9:355.6(3).2 For

the following reasons, we affirm the trial court’s January 26, 2016 recusal ruling,

as well as the February 23, 2016 judgment holding Pauline in contempt and casting

her with trial court costs for the filing of the rule for contempt. We find that the

trial court’s ruling on relocation has been rendered moot by subsequent

proceedings, and we reverse the trial court’s award of $3,800 to Brad for attorney

fees, finding that La. R.S. 9:355.6(3) does not permit an award of attorney fees.

PROCEDURAL HISTORY

This litigation involves a long running dispute between the parents of their

minor son, J.P., born October 31, 2001. Pauline and Brad were divorced in 2005,

and initially shared joint custody, with Pauline serving as the domiciliary parent.

Brad’s visitation was sporadic. In 2007, Pauline remarried a member of the United

States Army, who was then stationed at Fort Polk in Leesville, in Vernon Parish,
1
Although this case involves the relocation and custody of a minor child, it is not
necessary to use the initials of the parents as Uniform Rules-Court of Appeal, Rules 5—1, 5-2,
which require the use of initials for certain proceedings, are not involved in this case. We choose
to use the child’s initials in certain instances requiring his specific identification.
2
At the conclusion of the hearing, the trial court granted permission for Pauline to file a
devolutive appeal of the interlocutory judgments involving the recusal of the trial judge and the
relocation issue. Louisiana Code of Civil Procedure Article 1915(6) provides that a trial court’s
finding of contempt is properly appealable as a final judgment. See Hodges v. Hodges, 02-489
(La.App. 3 Cir. 10/2/02), 827 So.2d 1271, writ denied, (La. 11/8/02) 828 So.2d 1122.

Louisiana, and J.P. resided there with her and her new husband. In 2011, Pauline’s

husband was transferred to Leavenworth, Kansas, and Pauline sought and was

granted permission to relocate J.P. to the State of Kansas in connection with the

transfer of her military husband in a stipulated judgment dated May 12, 2011. J.P.

was relocated to the State of Kansas for approximately one year. Pauline’s

husband was transferred back to Fort Polk and Pauline, J.P., and her children with

her new husband returned to Pickering, a small community near Fort Polk in

Vernon Parish. J.P. attended school in Pickering for almost three years while

residing with Pauline and her new husband and their children.

In Spring 2015, Pauline’s husband was once again transferred to

Leavenworth, Kansas, and Pauline voiced her intention to Brad to once again

relocate J.P., now thirteen years old, to Leavenworth to be with her husband and

their children. It is undisputed that Pauline did not send a formal notice of

relocation of her intended move to Kansas as required by La.R.S. 9:355.5. She

claimed that she believed the earlier May 12, 2011 judgment granting her

permission to relocate the minor child to the State of Kansas was still in effect,

even though she had been living in Pickering with J.P. and her family for almost

three years. Upon learning of Pauline’s intention to relocate the minor child once

again to the State of Kansas, Brad informed his attorney that he wished to formally

oppose the relocation. An opposition to the relocation was filed on Brad’s behalf,

along with a motion to modify custody wherein Brad sought to be named

domiciliary parent of J.P.

On May 19, 2015, the trial court set a hearing date for Brad’s motions and

signed a preliminary injunction, which stated: “It is ordered that a writ of

injunction issue herein enjoining PAULINE MOSS RODOCK from relocating the

2

minor child until a hearing can be determined to decide whether or not the said

relocation is in the best interest of the said minor child.” The order set the hearing

for June 1, 2015.

At the beginning of the hearing on June 1, 2015, the trial court proposed,

without objection, that he conduct an in camera interview with the child in

chambers. The transcript of the June 1, 2015 hearing is entitled, “THE FIRST

INTERVIEW WITH (J. P.)[,]” and was subsequently placed under seal and is

made part of the record on appeal. This transcript contains a discussion with

counsel held on the record prior to the trial court’s questioning of the minor child

in chambers. There is a discussion of the May 19, 2015 request by Brad for a

preliminary injunction prohibiting Pauline from taking the minor child to the State

of Kansas until a hearing and ruling can be made on the relocation and

modification of custody motion filed by Brad:

BY THE COURT:

The Court set the – I think this thing was, maybe was filed last
week or –

BY MR. FONTENOT:

Yes, sir.

BY THE COURT:

- - the end of - - I set it quickly because of the injunction that
was filed and I think part of that is going to be that that’s going to go
away with and we’ll come back so that they can - - she can move - -
the only thing that is leaving for the Court to decide is whether or not
the child can move.

BY MR. FONTENOT:

That’s correct.

BY THE COURT:

3

So, the restraining order will be done away with as of today
and, so I’m going to interview the child and then we’re going to come
back on the 19th which is a Friday and we’ll hear the remaining
witnesses in this matter.

BY MR. LEAVOY:

And, for the record, Your Honor, we’re waiving any objection
we had to service and the language of the order.

MR. FONTENOT:

All right.

After the discussion with counsel, the trial court interviewed the minor child

in chambers without objection. Following that interview with J.P., Pauline’s then

attorney claimed that after interviewing J.P. in chambers the trial judge met with

the attorneys off the record and indicated that he was not inclined to grant the

relocation. Ostensibly, Pauline still wanted a full hearing on relocation of the

minor child to the State of Kansas and both the relocation hearing and Brad’s

motion to modify custody were continued to June 19, 2015, with an additional date

of June 22, 2015, if needed. The record indicates that at some point prior to the

June 19, 2015 hearing, the trial court and counsel agreed to sever Brad’s motion

for modification of custody and only the issue of relocation would be heard on

June 19 and June 22, 2015, if needed.

The parties were not able to present all the evidence needed on June 19,

2015, and the trial was recessed to June 22, 2015. When the parties appeared on

June 22, 2015, after some evidence was taken, Pauline filed a motion to recuse the

trial judge. After reviewing the motion, the trial judge determined that he would

not recuse himself and requested that the clerk randomly allot the recusal motion to

another judge for a hearing and ruling.

4

Prior to ordering the case to be submitted for allotment on the recusal motion,

the trial court stated on the record his interpretation of the orders entered in the

case prior to Pauline’s filing of her motion to recuse.3 More specifically, the trial

court referred to the June 1, 2015 preliminary injunction ruling and stated, “So, and,

of course, the child, according to the law, my interpretation of it, is the child is not

allowed to leave Louisiana. Is that your understanding Mr. Fontenot, and Mr.

Leavoy?” Whereupon, Mr. Fontenot, counsel for Brad, responded, “Pending some

other order being issued that’s correct, Your Honor.” Mr. Leavoy, counsel for

Pauline, did not object, and made no response on the record.

The trial court then stated on the record, “All previous orders of the court are

in effect, it’s just we won’t be doing anything the rest of the afternoon or until

Division A or B says that I am to be recused or not to be recused in this matter.”4

The case was then allotted to the judge in Division C for a hearing on Pauline’s

recusal motion.

Before the recusal motion could be heard by the Division C judge, to whom

the recusal motion had been assigned, he unexpectedly passed away. The motion

to recuse was then transferred to a pro tempore judge. On September 8, 2015, the

parties stipulated and agreed that the recusal motion would be submitted on the one

hundred and seventy page transcript of the hearing held on June 1, 2015, June 19,

2015, and June 22, 2015.

There were delays in submitting the transcript to the pro tempore judge due

to cost issues, and the motion for recusal was ultimately transferred to the newly
3
Louisiana Code of Civil Procedure Article 153 governs the trial court’s authority when
a motion to recuse has been filed and states in pertinent part, “Until a judge has recused himself,
or a motion for his recusation has been filed, he has full power and authority to act in the cause.”
4
The trial court apparently misspoke as he is the judge assigned to Division B. The
record reflects that the recusal motion was ultimately assigned to Division C for determination.

5

elected district judge in Division C, who issued his reasons for ruling denying

Pauline’s recusal motion on December 3, 2015, and on January 26, 2016, signed

the judgment denying Pauline’s motion for recusal, from which Pauline now

timely appeals.

Once the recusal motion was denied, the original trial judge ruled on the

merits of the relocation motion in oral reasons stated on the record on February 8,

2016. The trial court found that Pauline failed to provide proper statutory notice

pursuant to La.R.S. 9:355.6 to Brad of the proposed relocation of the minor child.

The trial court further found that La.R.S. 9:355.6(2) provided a basis to order that

the minor child be returned to Louisiana from Kansas and awarded Brad $3,800 in

expenses representing his attorney fees for opposing the relocation pursuant to

La.R.S. 9:355.6(3).

The trial court also heard and denied an earlier rule for contempt that had

been filed by Brad on November 13, 2013, on visitation issues. Brad did not

appeal that judgment and that issue is not before us. However, the trial court did

grant Brad’s rule for contempt filed February 1, 2016, and held Pauline in

contempt of court for relocating the minor to Kansas without court permission and

ordered Pauline to pay court costs for the filing of Brad’s rule for contempt.

Judgment was signed on February 23, 2016, from which Pauline now also timely

appeals.

ASSIGNMENTS OF ERROR

Pauline’s assignments of error on appeal translate into an assignment of

error based on the ruling denying the motion for recusal, the ruling finding Pauline

in contempt of court, the ruling awarding Brad’s $3,800 in attorney fees and

6

expenses against her, and the ruling denying the relocation of the minor child to the

State of Kansas.

LAW AND DISCUSSION

Motion to Recuse

We will first address the denial of Pauline’s motion to recuse the trial judge.

Due to the delays explained earlier, the newly elected trial judge in Division C to

whom the recusal motion had been allotted reviewed the transcript and issued

reasons for ruling on the recusal motion on December 3, 2015. He signed a

judgment on January 26, 2016, denying Pauline’s motion to recuse. After a review

of the record and the applicable law, we agree.

The grounds for recusal of a judge are set forth in La.Code Civ.P. art. 151.

In this case, the allegation was that the trial judge exhibited bias favoring Brad and

against Pauline. Louisiana Code of Civil Procedure Article 151(A)(4) provides, in

pertinent part:

A. A judge of any court trial or appellate, shall be recused when he:

....

(4) 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.

A panel of this circuit recently discussed the law applicable to the recusation

of judges in the case of David v. David, 14-999 (La.App. 3 Cir. 2/4/15), 157 So.3d

1164, writ denied, 15-494 (La. 5/15/15), 170 So.3d 968. In making such a

determination the court in David, 157 So.3d at 1168, stated:

When a party seeks recusation of a judge based on allegations
of bias or prejudice, our jurisprudence requires not only a finding of
actual bias or prejudice, but that the bias or prejudice “‘must be of a
substantial nature and based on more than conclusory allegations.’”

7

Covington v. McNeese State Univ., 10-250, pp. 2-3 (La. 4/5/10), 32
So.3d 223, 224-225 (quoting Southern Casing of La., Inc. v. Houma
Avionics, Inc., 00-1930 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040).
Adverse rulings alone do not show bias or prejudice. Earles v.
Ahlstedt, 591 So.2d 741 (La.App. 1 Cir. 1991). Further, alleged bias
or prejudice which “emanates from testimony and evidence set forth
in the proceedings” is not of an “extrajudicial nature” and is therefore
insufficient to merit recusal. Augman v. City of Morgan City, 03-396,
p. 3 (La.App. 1 Cir. 12/31/03), 864 So.2d 248, 249.

Pauline claims the following assignments of error on appeal in connection

with the review of her motion to recuse the trial judge:

ASSIGNMENT OF ERROR NO. 5: It was error for Judge
Westerchil (the Judge of Division C) to deny [Pauline’s] Motion to
Recuse.

ISSUE 5A: Whether the Trial Judge improperly commented
on the evidence during the taking of testimony.

ISSUE 5 B: Whether the Trial Judge pre-judged the matter.

ISSUE 5 C: Whether the Trial Judge improperly brought up a
remedy not asserted in pleadings or in
testimony by [Brad] or his counsel.

ISSUE 5 D: Whether the Trial Judge scheduled days to
accommodate BP (Brad) and his counsel
without offering the same accommodation to
[Pauline] and her counsel.

(Emphasis added.)

The trial judge hearing the recusal motion rendered written reasons for

ruling and stated:

This court finds after a review of this record and the trial
transcript, the Motion to Recuse lacks merit. Specifically, the
comment alleged in paragraph two (2) of the motion is a credibility
determination that may or may not have been expressed by the trial
judge depending on the interpretation of the reader. Although the trial
court may have made a comment about his finding of credibility, that
is certainly subject to change based upon the entire evidence before
the court and does not indicate bias or prejudice.

Pauline also claims that the trial judge had prejudged the case. In paragraph

8

three of the motion to recuse, Pauline claims:

The judge informed the lawyers in the case, in chambers, that the best
resolution of the matter would be for the mover to agree not to
relocate with the child. Additionally, the judge told the lawyers that
although he had not prejudged the case after the interview with the
child, he (the judge) was not inclined to allow the relocation.

In general, the law states that “A judge is presumed to be impartial.” Earles

v. Ahlstedt, 591 So.2d 741, 746 (La.App. 1 Cir. 1991). The trial court hearing the

recusal motion found that Pauline’s allegations contained in paragraph three of the

motion to recuse lacked merit “in that the record is devoid of any in chambers

communications. Counsel for the mover further admitted that the trial judge had

said to both attorneys that he had not “prejudged the case.”

Pre-trial conferences in chambers frequently are sought by counsel to foster

and promote settlement discussions. While it may be the better practice for these

discussions to be held with a court reporter present so that a transcript can be

available, statements made by a trial judge that he or she is “leaning” one way or

the other are not, generally, evidence of bias. To the contrary, “adverse rulings

alone do not show bias or prejudice.” Id.

The trial court’s ruling on recusal is further supported by the record as the

original judge hearing the relocation issue had urged that the parties agree to

engage in mediation and, failing that agreement, ordered that both parties and the

minor child be evaluated by Dr. John Simoneaux, a psychologist with extensive

experience in relocation issues. Counsel was also appointed to represent the

interests of the minor pursuant to La.R.S. 9:345. These orders reflect an attempt by

9

the judge to foster and promote the best interest of the child and are not evidence

of bias or prejudice against Pauline.5

Finally, Pauline argues that the trial judge, hearing the relocation issue,

when conducting a colloquy with counsel to set an additional date for the

completion of the hearing, did not ask her or her husband if they would be

available on the potential trial date of July 9, 2015. The trial judge only asked

counsel for both parties and Brad about their availability. The transcript of this

exchange indicates that this was a preliminary discussion to set an additional date

in case the hearing did not conclude on June 22, 2015. In any event, no date was

set for an additional hearing date due to the filing of Pauline’s motion to recuse on

June 22, 2015. It would not have been unusual for the trial judge to ask Brad his

schedule, as it was clearly known to all parties that he worked offshore on a

fourteen-day hitch, and therefore there was a need to determine his work schedule.

Pauline’s attorney could easily have made the trial court aware of any conflicts

Pauline may have had. We find no merit to this claim.

After reviewing the recusal motion, the trial judge to whom that motion had

been allotted found “that the entire matter is based on allegations and that there

lacks any factual basis showing that the court was biased or prejudiced toward any

party or party’s attorney.” In addition, we find that all of the allegations made by

Pauline emanate “from testimony and evidence set forth in the proceedings” and

are not of an “extrajudicial nature,” and are thus insufficient “to merit recusal.”

State v. Augman, 03-396, p, 3 (La.App. 1 Cir. 12/31/03), 864 So.2d 248, 249

(quoting State v. Williams, 601 So.2d 1374, 1375 (La.1992)). After a review of the

5
The record reflects that the evaluations ordered by the trial court have now taken place,
but the specifics of those recommendations are not before us on appeal.

10

transcript and the record, we agree that the allegations made by Pauline are not of

the “substantial nature” necessary to require recusal of the trial judge and affirm

the ruling of the trial judge hearing the recusal motion denying Pauline’s motion to

recuse the original trial judge. See Covington v. McNeese State Univ., 10-250 (La.

4/5/10), 32 So.3d 223.6

Contempt

The trial judge hearing the relocation motion was finally able to issue oral

reasons for denying the relocation on February 8, 2016, and subsequently issued a

judgment dated February 23, 2016, from which Pauline has timely appealed.

The trial court also granted Brad’s second rule for contempt on February 8,

2016, which is also memorialized in the February 23, 2016 judgment, from which

Pauline has also timely appealed. Brad had alleged that Pauline moved the minor

child to the State of Kansas in violation of the trial court’s preliminary injunction

heard June 1, 2015, and sought attorney fees, court costs, and other sanctions

deemed appropriate by the trial court. Correspondence between counsel, attached

as an exhibit to the rule, indicated that after Pauline filed her recusal motion,

“Judge Eaves stayed further proceedings and mandated that all orders shall remain

in effect.”

As previously stated in the procedural history of this case, the preliminary

injunction was heard on June 1, 2015. A reading of the entire transcript indicates

that the trial court allowed Pauline to move to the State of Kansas, but he

specifically stated that the June 19, 2015 hearing was to determine if the minor

6
Pauline also urged that the trial judge had made a case for Brad and awarded sanctions
not prayed for in his petition. The trial judge awarded Brad expenses of $3,800 pursuant to
La.R.S. 9:355.6. This issue will be addressed in connection with the trial court’s judgment on
relocation.

11

child could be relocated: “the only thing that is [left] for the Court to decide is

whether or not the child can move.”

The hearing on relocation began on June 1, 2015, was recessed, and again

heard on June 19, 2015, and again was recessed to June 22, 2015, during which

Pauline filed her recusal motion. The record is clear that prior to the allotment of

the case to Division C for the determination of the recusal motion, the trial court

reiterated his prior order of June 1, 2015, that “the child is not allowed to leave

Louisiana.” Counsel for Brad responds, “Pending some other order being issued,

that’s correct, Your Honor.” Counsel for Pauline did not object and did not

challenge the trial court’s interpretation of the status of the case on the record when

Pauline’s recusal motion was filed.

In the February 23, 2016 judgment, the trial court found Pauline in contempt

of court for relocating the minor child to the State of Kansas in June 2015 in direct

violation of the trial court’s order of June 1, 2015. The trial court ordered her to

“pay all costs of this Rule for Contempt,” which have yet to be determined. In its

reason’s for ruling, the trial court reiterated the history of the injunction and the

discussions between the court, counsel and the parties prior to the filing of the

recusal motion and the stay of the case, reiterating his finding that it was clear that

Pauline was not to relocate the minor child to the State of Kansas.

The trial court further found that Pauline’s disregard of the trial court’s order

was willful. Given Pauline’s educational level, the history of prior litigation

between the parties, and her admission to her minor child that she could be held in

contempt for the move, the trial judge’s reasons were fully supported by the record.

The general rule is that “[t]he decision whether to grant relief against a

recalcitrant party rests within the discretion of the trial court and will not be

12

disturbed absent an abuse of that discretion.” LeJeune v. Lafayette Tower Service,

94-1240, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 112, 114. After a thorough

review of the record, we find no abuse of the trial court’s discretion in finding

Pauline in contempt of court, awarding court costs for Brad’s filing of the rule for

contempt, and denying Brad’s request for attorney fees and sanctions. We affirm

that ruling.

Relocation

We find that any ruling on the issue of the relocation of the minor child to

Kansas in June 2015 is rendered moot and would merely result in an advisory

opinion. “A moot case is one which seeks a judgment or decree which, when

rendered, can give no practical relief.” Wood v. Fontenot, 04-1174, p. 3 (La.App.

3 Cir. 3/2/05), 896 So.2d 323, 326-27, writ denied, 05-0801 (La. 5/13/05), 902

So.2d 1023 (quoting United Cos. Lending Corp. v. Hall, 97-2525, p. 4 (La.App. 1

Cir. 11/6/98), 722 So.2d 48, 50). It is well settled that an appellate court will not

render advisory opinions from which no practical results can follow. Suire v.

Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466 (La. 4/12/05),

907 So.2d 37. “As a result, courts have established the rule that moot questions

will not be considered on appeal.” Wood, 896 So.2d at 326.

The record establishes that after Pauline relocated J.P. to Kansas in July

2015 in violation of the court’s order, the minor child was returned to Louisiana on

March 11, 2016. Since his return, the record reflects that the parties have been

engaged in additional litigation over Pauline’s new request to relocate the minor

child to the State of South Carolina, where her military husband has now been

stationed. Brad again opposed the relocation of the minor child from Louisiana to

South Carolina and sought an injunction against the removal, which was granted

13

by the trial court on August 5, 2016, with a hearing set for August 23, 2016. At

that point in time, Pauline had already relocated J.P. to South Carolina.

Pauline sought and was granted leave to file an “emergency” writ to this

court seeking a stay of the trial court’s injunction dated August 5, 2016 preventing

relocation of J.P. to South Carolina, and a reversal of the ruling by the trial court

ordering Pauline to return the minor child to Louisiana.7 A hearing on the merits

of the relocation motion had been set for September 19, 2016. This court received

the writ and promptly ruled as follows:

STAY GRANTED IN PART AND DENIED IN PART. This court
grants the stay, in part, as requested by P.R. insofar as the trial court
ordered the immediate return of J.P. to Louisiana. In all other respects,
we deny the stay. Specifically, we decline to stay the hearing
scheduled for September 19, 2016.

JCP DKS

Conery, J., concurs in part and dissents in part. I agree with the
majority except I would order P.R. to bring J.P. to the hearing on
September 19, 2016.

The September 19, 2016 hearing was continued until September 29, 2016.

The trial court heard all the evidence, and the case was submitted to the trial court

for ruling. The court then sealed the psychological report of Dr. Simoneaux, which

he had previously ordered. At this point in the proceedings, counsel for Brad

orally moved to recuse the trial judge and a formal recusal motion was filed. The

case was then randomly allotted to Division C to hear that recusal motion, and no

further proceedings appear in the trial record submitted in connection with the

appeal now before us. Specifically, the merits of the relocation and custody

hearing are not before us. However, the relocation issues involving Pauline’s new

request to relocate J.P. to South Carolina render moot any further discussion of the

7
P.R. v. B.P, 16-723 (La.App. 3 Cir. 9/15/16).

14

2015 Kansas relocation issue. Therefore, the trial court’s judgment denying the

prior relocation to the State of Kansas, dated February 23, 2016, that is the subject

of this appeal is rendered moot as any decision we would make on this specific

issue would merely be advisory and “afford no practical relief.” Suire, 907 So. 2d

at 56 (quoting Gekakis v. Southern Trace Property Owners Ass'n, 36,609 (La.App.

2 Cir. 12/11/02), 833 So.2d 1116, 1119).

Award of Expenses to Brad

The February 23, 2016 judgment ordered, “that as a result of the relocation

of the minor child without the Court’s permission, Pauline Moss Rodock is

required to pay all expenses of Mr. Pommier in his opposition in the amount of

$3,800 to be paid within thirty (30) days of today’s date.”

The trial court apparently based its award to Brad on the following

testimony:

BY THE COURT:

I have a question.

A. Yes, sir.

Q. What expenses have you had to pay to file this objection to
relocation to Mr. Fontenot? [8]

A. $3,800

Q. $3,800

BY MR. LEAVOY:

I’m sorry, I didn’t hear the answer, Your Honor.

BY THE COURT:

Q. $3,800. You have any expenses for coming to court? This is
the second time, I believe, we’ve been to court on this issue?

8
Mr. Fontenot was counsel of record for Brad in this litigation.

15

A. Just gas money, I don’t know.

Q Okay. But you’re not asking the Court for anything other than
that?

A. No.

The record is clear that the award of $3,800 made to Brad was the amount he

testified that he had paid his attorney, Mr. Fontenot, to oppose the relocation of the

minor child to the State of Kansas. Louisiana Revised Statutes 9:355.6(3) states,

“The court may consider a failure to provide notice of a proposed relocation of a

child as: (3) Sufficient cause to order the person proposing relocation to pay

reasonable expenses incurred by the person objecting to the relocation.”

A panel of this court in Odell v. Odell, 14-250, p. 11 (La.App. 3 Cir. 6/4/14),

139 So.3d 1275, 1281 (footnote omitted), writ denied, 14-1436 (La. 7/15/14), 145

So.3d 1034, stated in regard to the award of attorney fees pursuant to La.R.S.

9:355.6 (3):

While the statute provides for the payment of “reasonable expenses,”
it does not separately provide for attorney fees.[9] Certainly, “[a]s a
general rule, attorney fees may not be awarded to a successful litigant
unless specifically provided for by statute or contract.” Campbell v.
Melton, 01-2578 (La. 5/14/02), 817 So.2d 69.

We find that La.R.S. 9:355.6(3) does not provide a basis for the award of

attorney fees, and we therefore reverse the $3,800 award to Brad pursuant to the

relocation statute. Further, although Brad testified he may have incurred expenses

for gasoline to attend the hearings, there is nothing in the record to support a

specific award. The nebulous statement by Brad that he had to pay “gas money”

for travel to and from court is insufficient to support any award. The trial court

9
The prior version of La.R.S. 9:355.6 effective until July 31, 2012 did provide for the
award of attorney fees to a person opposing relocation. However, the opposition to the
relocation of the minor child in this case took place after the effective date of the present statute.

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was in error when it awarded Brad $3,800 for his attorney fees, as such an award is

not allowed pursuant to La.R.S. 9:355.6(3). See Odell, 139 So.3d 1275. Therefore,

we reverse the judgment of the trial court awarding Brad, $3,800, but affirm the

allocation of all trial court costs in connection with these rules against Pauline.

CONCLUSION

For the foregoing reasons, the trial court’s judgment signed on January 26,

2016, denying Pauline Moss Rodock’s motion to recuse the trial judge is affirmed.

The trial court’s judgment signed on February 23, 2016, holding Pauline Moss

Rodock in contempt of court and assessing all trial costs in connection with the

motion is also affirmed. We reverse the $3800 award to Brad Allen Pommier for

attorney fees. We further find that the issue of the relocation of the minor child to

the State of Kansas has now been rendered moot. All costs of this appeal are

assessed against Pauline Moss Rodock.

AFFIRMED IN PART, REVERSED IN PART, AND PARTIALLY
RENDERED MOOT.

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