Danielle Ganaway v. Kyle Ganaway

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-875

DANIELLE GANAWAY

VERSUS

KYLE GANAWAY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 83,609-C
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and D. Kent Savoie, Judges.

REVERSED IN PART; AFFIRMED IN PART.

Elizabeth B. Carr
Bolen, Parker, Brenner, Lee & Engelsman, Ltd.
709 Versailles Blvd
P.O. Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR PLAINTIFF/APPELLANT:
Danielle Ganaway (now Semento-Brooks)

Misty Dawn Smith
Attorney at Law
301 South Third Street
Leesville, LA 71446
(337) 238-2800
COUNSEL FOR DEFENDANT/APPELLEE:
Kyle Ganaway

SAVOIE, Judge.

In this custody matter, Danielle Ganaway (now Semento-Brooks) appeals

the trial court’s ruling that (1) modified a co-domiciliary custody order to name

Kyle Ganaway as the primary domiciliary parent of the parties’ children, and (2)

denied her motion seeking authorization to relocate her children to the Dallas-Fort

Worth area. For the reasons that follow, we reverse the trial court’s modification

of custody and affirm the denial of Danielle’s motion for relocation.

FACTUAL AND PROCEDURAL BACKGROUND

Danielle Ganaway and Kyle Ganaway were married in 2005. They are the

parents of two children who were born in 2005 and 2008, respectively. The parties

separated in July 2010, and on August 13, 2010, Danielle filed a petition for

divorce. The parties reside in Vernon Parish.

On September 23, 2010, the parties entered into a stipulation wherein they

agreed that they would be the co-domiciliary parents of the children, with Kyle to

have reasonable visitation every Friday through Sunday pursuant to a “Joint

Implementation Custody Plan.” A judgment was signed on November 22, 2010, in

accordance with the parties’ agreement.

On January 27, 2011, the parties entered into an “interim joint stipulation”

agreeing that the children would live with Danielle’s parents in Texas for the next

six months. According to Danielle, the children returned to Vernon Parish in July

2011 and moved in with her as she had secured public housing.

A judgment of divorce was rendered November 26, 2012. The judgment

also stated that Danielle was allowed to remove the minor children from Louisiana

for the purpose of relocation to Keller, Texas, and that Kyle would have visitation

any weekend provided that he gave Danielle three days’ notice. However,

according to Danielle, she decided not to move to Keller, Texas at that time, but

rather wanted to wait until the end of the school year; by that time, however, Kyle

did not consent to the children moving.

On January 6, 2015, Danielle filed a Rule for Contempt alleging that Kyle

had failed to return the children following a scheduled holiday visitation. She also

sought a modification of custody. That same day, Kyle filed a motion seeking

temporary ex-parte custody alleging that he had been notified by the sheriff’s

department that Danielle was required to be hospitalized due to a suicide attempt.

The trial judge denied the interim relief sought by Kyle, but set the matter for

hearing.

The matter was heard on February 5, 2015, at which time the parties

stipulated to a joint, co-domiciliary, custody arrangement. The trial court signed a

judgment on February 26, 2015, in accordance therewith. Danielle was awarded

with physical custody of the children, with the exception of the second, third, and

fourth weekends of the month, and Wednesday nights, when Kyle would have

physical custody. A holiday visitation schedule was also established.

On December 5, 2015, Danielle filed a petition which sought to modify

custody as well as a ruling of contempt and suspension of visitation. She alleged

that Kyle had physically abused the children during a visitation. On December 14,

2015, the trial judge denied the interim emergency relief requested by Danielle, but

signed an “interim order,” stating that the visitation schedule for Kyle shall remain

in effect until the matter was heard and that his visitation was to be supervised.

The matter was heard January 21, 2016, at which time the parties entered into a

stipulation. Judgment was rendered that day, but not signed until November 28,

2016. The judgment ordered that:

the interim order of custody with supervised visitation in favor of
Kyle Ganaway be continued until he completes both a parenting class
and an anger management class and provides proof of completion of
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the same to opposing counsel. Once Kyle Ganaway completes the
aforementioned classes and provides proof of completion to opposing
counsel, his visitation shall resume unsupervised, in accordance with
the judgment signed February 26, 2015[.]

The judgment further required Kyle to become current on his child support

obligation within fifteen days.

On May 26, 2016, Danielle filed a motion seeking to relocate the children’s

residence from Leesville, Louisiana to the “Dallas-Fort Worth Area.” She alleged

that she had remarried, that her current husband was in the Army Reserves and was

stationed there, that the children’s maternal grandparents resided there, that she

wanted to complete her degree at the University of North Texas for increased job

opportunities, and that there were improved educational options for her children.

Danielle’s motion was set for hearing July 11, 2016, and thereafter was continued

several times. Meanwhile, on September 13, 2016, Judge Anthony Eaves recused

himself from these proceedings, which were then reassigned to Judge Scott

Westerchill.

Danielle’s motion to relocate the children was heard before Judge

Westerchill on November 28, 2016, and January 10, 2017. The trial court signed a

judgment on February 21, 2017, that denied Danielle’s motion to relocate. The

judgment also modified the February 26, 2015 judgment to name Kyle as the

primary domiciliary parent while maintaining the same physical custody schedule

between the parties.

Danielle appeals and asserts the following as assignments of error:

1. The Trial Court erred when it changed domiciliary status when the
issue was not plead by either party and neither requested or was
granted permission to amend the pleadings or request a change in
domiciliary status.

2. The Trial Court erred when it denied plaintiff’s Motion for
Authorization to relocate the residence of the children when that
decision was based upon its ruling regarding domiciliary status, an
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issue which was not properly before the Court and the Court
ignored several relevant pieces of evidence favoring relocation.

ANALYSIS

Modification of Custody

In Evans v. Lungrin, 97-541, 97-577, pp. 6-7. (La. 2/6/98), 708 So.2d 731,

735, the Louisiana Supreme Court stated:

It is well-settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844
(La.1989). However, where one or more trial court legal errors
interdict the fact-finding process, the manifest error standard is no
longer applicable, and, if the record is otherwise complete, the
appellate court should make its own independent de novo review of
the record and determine a preponderance of the evidence. Ferrell v.
Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95); 650 So.2d 742, 747,
rev’d in part, on other grounds, 96-3028 (La. 7/1/97); 696 So.2d 569,
reh’g denied, 96-3028 (La. 9/19/97); 698 So.2d 1388. A legal error
occurs when a trial court applies incorrect principles of law and such
errors are prejudicial. See Lasha v. Olin Corp., 625 So.2d 1002, 1006
(La.1993). Legal errors are prejudicial when they materially affect the
outcome and deprive a party of substantial rights. See Lasha, 625
So.2d at 1006. When such a prejudicial error of law skews the trial
court’s finding of a material issue of fact and causes it to pretermit
other issues, the appellate court is required, if it can, to render
judgment on the record by applying the correct law and determining
the essential material facts de novo. Lasha, 625 So.2d at 1006.

On appeal, Danielle argues that the trial court’s custody modification

awarding Kyle with domiciliary status was an error of law since neither party

sought a modification of custody and the issue was not otherwise properly before

the trial court for consideration. We agree.

We addressed a similar issue in Galland v. Galland, 12-1075 (La.App. 3 Cir.

3/20/13), 117 So.3d 105. In Galland, following a hearing regarding where the

parties’ children were to attend school, the trial court rendered a judgment

modifying the parties’ co-domiciliary custody arrangement and named the father as

the primary domiciliary parent. In reversing that portion of the judgment, we

stated the following:
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In Domingue v. Bodin, 08-62, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d
654, 657 (alterations in original), we evaluated a similar issue and
explained the powers of the trial court:

Pursuant to La.Code Civ.P. art. 191 “[a] court
possesses inherently all of the power necessary for the
exercise of its jurisdiction even though not granted
expressly by law.” From that grant of power, trial courts
are vested with authority, under La.Code Civ.P. art. 862
to grant relief to the party in whose favor the final
judgment rendered was entitled, even if the party has not
demanded such a relief in his pleadings and the latter
contain no prayer for general and equitable relief.
Accordingly, “under proper circumstances proof beyond
the pleadings, even if objected to, may be admitted and
considered when permission to amend the pleadings is
requested and granted.” La.C.C.P. Art. 1154. (emphasis
supplied). Ussery v. Ussery, 583 So.2d 838, 841 (La.App.
2 Cir.1991) (citing Guillory v. Buller, 398 So.2d 43
(La.App. 3 Cir.1981)). However, notwithstanding this
authority, “nothing in the article [art. 862] is intended to
confer jurisdiction on a court to decide a controversy
which the parties have not regularly brought before it.”
Id. Otherwise, “[a] judgment beyond the pleadings is a
nullity.” Id. at 841, citing Romero v. State Farm Fire &
Casualty Co., 479 So.2d 694 (La.App. 3 Cir.1985).

Here, neither party requested nor was granted permission to amend the
pleadings to request a change in domiciliary status. Indeed, the parties
stipulated at the beginning of trial that the only issues before the court
were the contempt issues and the issue of school choice. . . . Thus, the
trial court went beyond the scope of the pleadings to unilaterally
expand them to award [the father] primary domiciliary custody of the
children, which is clearly “a controversy which the parties have not
regularly brought before it.” Ussery, 583 So.2d at 841.

Similarly, in the instant matter, the only issue pending before the court was

Danielle’s motion seeking the relocation of the children to the Dallas-Ft. Worth

area. Neither party had pled or otherwise sought to modify the co-domiciliary

custody arrangement provided in the February 26, 2015 stipulated judgment.

Kyle argues that Galland, 117 So.3d 105, is not applicable because in

Galland, the court did not hear evidence concerning the best interest of the child,

whereas in the instant case, the trial court allowed evidence concerning the best

interest of the children in connection with the relocation motion. Therefore,
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according to Kyle, the pleadings were expanded to allow for the trial court’s sua

sponte consideration and modification of custody. Kyle also notes that Galland

pre-dated the supreme court’s holding in Hodges v. Hodges, 15-585, p. 9 (La.

11/23/15), 181 So.3d 700, 706, indicating that “the court can only designate a

single domiciliary parent.”

We disagree with Kyle’s suggestion that evidence concerning whether the

proposed relocation was in the best interest of the children expanded the pleadings

and placed modification of custody in front of the trial court. The analysis

applicable to a relocation motion is not the same as the analysis applicable to a

motion to modify custody. At issue in a relocation matter is whether the proposed

relocation is made in good faith and is in the best interest of the child, taking into

consideration the factors set forth in La.R.S. 9:355.14. Gathen v. Gathen, 10-2312

(La. 5/10/11), 66 So.3d 1. However, at issue in connection with a motion to

modify a stipulated custody judgment, are (1) whether there has been a material

change in circumstances since the custody decree was entered, and (2) whether the

proposed modification is in the best interest of the child.” Cormier v. Cormier, 12-

1340, p. 5 (La.App. 3 Cir. 4/24/13), 112 So.3d 1073, 1076 (emphasis added).

In the instant matter, regardless of whether the February 26, 2015 co-

domiciliary judgment is contrary to Hodges, 181 So.3d 700, neither party sought to

modify the stipulated judgment, and the issue of modification of custody was not

otherwise before the trial court with adequate notice to the parties.

Kyle also argues that modification of custody does not have to be pleaded,

citing to Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d. 519, and to

Miller v. Miller, 14-1355 (La.App. 3 Cir. 2005) 893 So.2d. 233. However, these

cases do not address a trial court’s sua sponte change in domiciliary status when

the issue of custody was not before the court. At issue in Mason, 203 So.3d 519 at
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529, citing Brantley v. Kaler, 43,418 (La.App. 2 Cir. 6/4/08), 986 So.2d 188, was

the trial court’s sua sponte modification of the logistics of a visitation schedule;

and at issue in Miller, 203 So.2d 233, was an original award of custody to

grandparents who had not sought custody.

Therefore, we find that the trial court erred in modifying the February 26,

2015 stipulated custody judgment, and we reverse that portion of the trial court’s

judgment that awarded primary domiciliary status to Kyle.

Danielle’s Relocation Motion

Louisiana Revised Statutes 9:355.10 states that “[t]he 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.” “[B]y placing this two-part burden on

the relocating parent and placing no burden on the nonrelocating parent, the

legislature chose to assign a very heavy burden to the relocating parent to prove

that relocation is in the best interest of the child.” Gathen, 66 So.3d at 8.

Louisiana Revised Statutes 9:355.14 sets forth the following with respect to a

relocation motion:

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.

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(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.

“This statute mandates that all of the factors set forth be considered by the

court. It does not, however, direct the court to give preferential consideration to

certain factors.” Curole v. Curole, 02-1891, p. 6 (La. 10/15/02), 828 So.2d 1094,

1097. “A trial court’s determination in a relocation matter is entitled to great

weight and will not be overturned on appeal absent a clear showing of abuse of

discretion.” Id. at 1096.

The trial court provided the following extensive oral reasons for denying

Danielle’s relocation motion:

[T]hese parties have been in continuous litigation since 2015 up until
the present date.
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Since then, basically, [Kyle] has remarried approximately three
years ago and he now has an eighteen-month-old daughter that was
born of that marriage. [Danielle] has remarried back in the December
of 2015. . . . She wants to move over where her parents now reside in
Grapevine, Texas. And, basically her reasons for relocating were that
the school system was better and she and her husband want to go to
work and go to school and live with the kids in the State of Texas.

The facts also provide that Mrs. Brooks is employed here
presently as a waitress . . . and she works basically six days a week.
Her husband is unemployed and he’s been unemployed for the last
two years. He does do some Army Reserve work about one weekend
a month over in Texas, and the children primarily stay at home with
him while she’s working. . . . [T]hey’ve been living in public housing
in a three bedroom apartment since 2011, they have one vehicle, and
the children are enrolled in school in Pickering. [Kyle] works at the
Enterprise car rental place as some kind of a manager, and his wife is
a nurse who works three nights over in Alexandria. . . . [T]he record
reflects that [the children’s] attendance [at school] is questionable and
they’re often tardy, and most of these absences and tardies take place
while they’re with their mother because as the mother testified, the
daughter’s hard to get up.

. . . . The [c]ourt has taken into consideration all of these
twelve factors [set forth in La.R.S. 9:355.14] and I’m going to go
through the twelve factors and give my reasons with respect to those
factors.

First of all, as far as the nature, the quality, the extent of
involvement, and the duration of the relationship with the child with
the person proposing relocation and with the non-relocating parent,
siblings, and other significant persons in the child’s life, the [c]ourt
finds that as far as all of these parties are concerned, these children
have very close relationships with everyone. . . . The ages of these
children are . . . eleven [and] . . . eight. And as far as the impact of
this relocation on their physical well-being is concerned, there
basically hasn’t been any evidence about any physical well-being of
the children or how that relocation will affect them as far as that goes,
and likewise, as far as their emotional development is concerned.

As far as the educational impact is concerned, . . . the only
evidence as far as that goes has been merely by testimony. There’s
not been any documentary evidence that’s been introduced that shows
that Texas schools are any better than our schools in Vernon
Parish. . . .

The feasibility of preserving a good relationship between the
non-relocating parent and the child through suitable physical custody
or visitation arrangements, considering the logistics and financial
circumstances of the parties: well, quite frankly, the financial
circumstances of these parties, especially as far as the mother’s
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concerned, is very disturbing to this [c]ourt. Here I have a situation of
a mother who’s basically the bread winner of the family. She works
six days a week at a restaurant and she has a husband at home who’s
been unemployed for the last two years. They live in public housing
and they’ve been doing so since 2011. . . . [H]er husband has made
no effort that I can find that he’s done anything to try to obtain any
type of employment here in Vernon Parish to improve their financial
situation at all . . . basically, he’s been sitting at home and their excuse
is that he’s been at home taking care of the kids. Well, quite frankly, I
would be more impressed with a parent of these children staying
home with the kids than I would a step-parent, and that’s been the
situation. . . . [A]s far as [Kyle] is concerned, he’s employed . . . and
his wife is working and going to school.

....

The reason of [Danielle] to seek to relocation is basically that she
wants to go to school and work in the State of Texas. And basically,
all of that as far as the [c]ourt is concerned appears to be purely
speculative. She said she can get a job, but she doesn’t have any job
lined up whatsoever; nothing. Her husband says he wants to be a
State Trooper, but he hasn’t been accepted into State Trooper School,
and he also says that he wants to be a State Trooper and go to
work. . . . [W]hat that does, is that puts these children in a situation of
being raised by their grandparent, their grandmother basically,
because the grandfather’s gone all the time, while they both work and
go to school and don’t have any time to spend with their children in
the State of Texas.

....

Next, is the extent to which the objecting person has filled his
financial obligations to the person seeking relocation, including the
child support in this particular case. There’s been some testimony that
[Kyle] was behind on his child support. . . . But to your credit, you’ve
caught up, and the testimony is that as of the present time, he’s caught
up and he’s current.

The feasibility of the relocation of the objecting person. Well,
we’ve talked about that quite a bit. Is it really feasible for [Kyle] to
uproot he and his wife and move from a situation where both he and
his wife’s family live in Vernon Parish and go to Dallas, Texas? I
find that it’s not really feasible. Is it possible? Yes. Do they have
Enterprise Rent-A-Car in Dallas, Texas? Sure they do. Do they have
hospitals for his wife to go to work over there? Sure they do. But the
realistic expectation for him to uproot and relocate not only he, his
wife, and his new child and to leave their respective families and
move to Dallas, Texas because momma wants to go there, is
unreasonable.

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There is no history of substance abuse or harassment that I’ve
heard. But the most disturbing factor in this whole case has to do with
this young man’s testimony that I heard. . . . This child came in and
testified, and it was evident that he had memorized a list of reasons
why he wanted his – why his father and his paternal grandparents
were bad people. He had been clearly influenced by his mother and
his entire maternal side of his family. . . . He even told me about
being given paper and pen in his grandparents’ hotel room the day
before our first hearing, and he and his sister made lists of the reasons
they wanted to move to the State of Texas. That is inappropriate.

....

You have been poisoning your children’s minds against their father
and their entire family. There is no way in the world I’m going to
approve this relocation under those circumstances.

....

Your children have been influenced and they are being harmed
by this. They both love you. . . . [Y]our son is a very intelligent
young man, and he – these children love both of you. And I know
they love your parents too, but I’m not giving that child’s – his
reasons any consideration whatsoever. I was extremely disturbed
when I finished speaking with him.

[Y]’all have lived here your whole lives. These children have lived
here primarily their whole lives. I just don’t see a real reason that it’s
in these children’s best interest to move.

On appeal, Danielle argues that “though the [trial court’s] oral ruling does

discuss some of the factors for relocations found in La.[R.S.] 9:355.14, it is clear

that the catalyst for the [trial] [c]ourt’s decision was the determination that the

parties could no longer be co-domiciliary parents.” In particular, she notes that the

trial court’s ruling seemed to be based on testimony from one of the children that

indicated to the trial court that Danielle was improperly influencing the children,

which she denies occurred. She further argues that the benefits of the proposed

relocation would “far outweigh the relatively minimal impact the move will have

on the children’s relationship with [Kyle].”

However, as reflected above, the trial court extensively discussed the factors

provided by La.R.S. 9:355.14, and there is no indication that the trial court’s
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decision was based upon its conclusion to modify custody. Rather, the trial court

seemed particularly concerned regarding Danielle’s and/or her family’s

inappropriate attempt to influence the children concerning their opinion on moving

to Texas; which was appropriate for the trial court to consider in connection with

Danielle’s relocation motion. After reviewing the record, we find that the trial

court did not abuse its discretion in denying Danielle’s motion for relocation.

DECREE

For the reasons stated above, the portion of the trial court’s ruling modifying

the custody arrangement so as to name Kyle Ganaway as the primary domiciliary

parent is hereby reversed. We further affirm the trial court’s ruling denying

Danielle Ganaway’s (now Semento-Brooks’) relocation motion. The costs of this

appeal are assessed equally between the parties.

REVERSED IN PART; AFFIRMED IN PART.

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