Donna Lasserre Severio VS Mack Hill
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT 2013 CU 0761 DONNA LASSERRE SEVERIO VERSUS MACK HILL Judgment Rendered EP 1 3 Zo On Appeal from the 18 Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana Docket No 43 Division B 631 The Honorable J Robin Free Judge Presiding Aquila Cy J D Jr New Roads Louisiana Attorney for Defendant Appellant William Mack Hill III Audrey A McCain Plaquemine Louisiana Donna Lasserre Severio Katherine K Green Attorney for Appellee Assistant Attorney for Plaintiff Appellee General Attorney Baton Rouge Louisiana BEFORE Louisiana Attorney General Office PARRO GUIDRY AND DRAKE JJ li Cu DRAKE J In this appeal the father of a minor child challenges the district court s denial of a peremptory exception raising the objections of nonjoinder of a party no right of action and no cause of action as to the maternal grandmother smotion for visitation rights to the minor child Far the reasons that follow we affirm the judgment ofthe district court FACTS AND PROCEDURAL HISTORY A minor child M was born to Defendant William Mack H Appellant Hill III and Dara Renee Lasserre on November 11 2008 The parties were subsequently married on January 17 2009 Later after the couple had physically separated Mr Hill instituted divorce and custody proceedings In a stipulated judgment dated November 29 2010 the district court awarded sole custody of the minor child to Mr Hill Shortly thereafter the minor child maternal grandmother Donna Lasserre s Severio filed a motion and order seeking visitation rights to the minor child In response Mr Hill filed a peremptory exception raising the objections of nonjoinder of a party no right of action and no cause of action Mr Hill later amended his exception adding a constitutional challenge to Louisiana Revised Statutes 9344 Dprior to its amendment by 2012 La Acts 763 2 effective June 12 2012 A bench trial was held in this matter on July 12 2011 Prior to the introduction of evidence the district court denied the exception raising the objections asserted by Mr Hill At the conclusion of the trial the district court awarded the maternal grandmother Mrs Severio periodic visitation with M H The parties were subsequently divorced by a judgment signed on June 13 2011 2 until November 6 2011 After the award of vistitation rights expired Mrs Severio reasserted on March 29 2012 her motion to set visitation rights In response Mr Hill filed the peremptory exception raising the objections of nonjoinder of a party no right of action and no cause of action as to the maternal s grandmother motion for visitation rights to M H Mr Hill also raised a constitutional challenge to the former version of Louisiana Revised Statutes D 344 urging 9re the same arguments he made at the July 12 2011 bench trial On October 9 2012 a hearing was held regarding Mrs Severio motion to s set visitation rights The district court determined that there was no new evidence before the court and that the hearing was simply a As such the district review court found that Mr Hill objections were not properly before the court At the s conclusion of the hearing the district court reinstated Mrs Severio visitation s rights4 Mr Hill now appeals the December 13 2012 judgment ofthe district court that reinstated Mrs Severio visitation rights to M s H APPLICABLE LAW AND DISCUSSION Nonioinder of a Partv No RiQht ofAction No Cause ofAction Prior to its amendment by 1995 La Acts 662 1 Louisiana Code of Civil Procedure article 641 provided that indispensable parties to an action are those whose interests in the subject matter are so intenelated that a complete and equitable adjudication of the controversy cannot be made unless they are joined in z Mr Hill appealed the July 12 2011 judgment of the district court which denied his exception and granted Mrs Severio visitation rights to this court This court summarily dismissed Mr Hill appeal holding that it was moot based on the fact that the judgment s rendered by the trial judge was only effective until November 6 2011 Severio v Hill ll 2211 La App 1 Cir 3 unpublished 2012WL996559 12 23 The Attorney General for the State of Louisiana filed a memorandum in support of the constitutionality of the former version of Louisiana Revised Statutes 9 See La C D 344 P art 1880 4 Although it does not foxm a part of the record on appeal we also note that the minor s child mother Daza Renee Lasserre Hill filed a rule to modify child custody and visitation on October 30 2012 in suit number 43 Division C in the Eighteenth Judicial District Court for 018 the parish of Pointe Coupee There is currently an order in effect that grants Ms Hill visitation with M on the first and third weekends of every month See Tranum v Hebert 581 So 2d H 1023 1027 La App lst Cir writdended 584 So 2d 1169 La 1991 3 the action The failure to join a party to an action may be noticed by an appellate court on its own motion La C arts 645 and 927 See Blanchard v P B Naquin 428 So 2d 926 927 La App lst Cir 1983 writ denied 433 So 2d 28 162 La 1983 A cause of action when used in the context of the peremptory exception is defined as the operative facts that give rise to the plaintifFs right to judicially assert the action against the defendant Everything on Wheels Subaru Inc v Subaru South Inc 616 So 2d 1234 1238 La 1993 The function of an exception that raises the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition Ramey v DeCaire 03 La 3 869 So 2d 114 118 No 1299 04 19 evidence may be introduced to support or controvert the exception raising the objection of no cause of action La C art 931 All facts pled in the petition P must be accepted as true Blanchard v Blanchard 12 La App 1 Cir 0106 31 12 112 So 3d 243 248 writ denied 13 La 4 111 So 3d 0488 13 12 1013 In reviewing the petition to determine whether a cause of action has been stated the court must ifpossible interpret it to maintain the cause of action Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated Livingston Parish Sewer Dist No 2 v Millers Mut Fire Ins Co of Texas 99 La App 1 Cir 1728 00 22 9 767 So 2d 949 952 writ denied 00 La 12 776 So 2d 2887 00 8 1175 An action can be brought only by a person having a real and actual interest which he asserts La C art 681 P The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action and its function is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit 4 Vincent v Vincent 1346 98 La App 1 Cir 6 739 So 2d 920 922 see La C art 927 99 25 P 6 A The exception is appropriate when the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with suit in a particular case When the facts alleged in the petition provide a remedy to someone but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy the exception should be sustained Vincent v Vincent 739 So 2d at 922 Whether a plaintiff has a right of action is a question of law therefore it is reviewed de novo on appeal Blanchard v Blanchard ll2 So 3d at 249 Grandnarent Visitation RiQhts The law in Louisiana regarding visitation rights of grandparents is set forth in Louisiana Revised Statutes 9344 and Louisiana Civil Code article 136 Prior to June 12 2012 Louisiana Revised Statutes 9344 stated A If one of the parties to a marriage dies is interdicted or incarcerated and there is a minor child or children of such marriage the parents of the deceased interdicted or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child ar children of the marriage during their minarity if the court in its discretion fmds that such visitation rights would be in the best interest of the child ar children B When the parents of a minor child or children live in concubinage and one of the parents dies or is incarcerated the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children C If one of the parties to a marriage dies or is incarcerated the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children D If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority if the court in its discretion find that such visitation rights would be in the best interest of the child or children Emphasis added 5 Prior to June 12 2012 Louisiana Civil Code article 136 stated A A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds after a hearing that visitation would not be in the best interest of the child B Under extraordinary circumstances a relative by blood or affinity or a former stepparent or stepgrandparent not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child In determining the best interest of the child the court shall consider 1 The length and quality of the prior relationship between the child and the relative 2 Whether the child is in need of guidance enlightenment or tutelage which can best be provided by the relative 3 The preference of the child if he is determined to be of sufficient maturity to express a preference 4 The willingness of the relative to encourage a close relationship between the child and his parent or parents 5 The mental and physical health of the child and the relative C In accordance with Paragraph B of this Article extraordinary circumstances may include when a parent is addicted to a controlled dangerous substance D In the event of a conflict between this Article and R 9 or S 344 345 the provisions of the statute shall supersede those of this Article Since the current filing of Mrs Severio motion and order for visitation the s Louisiana Legislature has amended the laws regarding grandparent visitation rights At the time Mrs Severio initiated her suit for visitation Louisiana Revised Statutes Annotated 9 did not require a showing of extraordinary D 344 circumstances to merit grandparent visitation rights but merely required that the district court find in its discretion that such visitation would be in the best interest of the child However effective June 12 2012 the Legislature amended Section D 344 to require a showing of extraordinary circumstances in addition to a consideration of the best interest factors in order to obtain grandparent visitation rights See 2012 La Acts 763 2 Also prior to the 2012 amendments Louisiana 5 Article 136 was amended by 2012 La Acts 763 6 1 effective June 12 2012 Civil Code article 136 allowed a relative seeking visitation including a grandparent a grant of reasonable visitation rights under extraordinary circumstances in addition to a consideration of the best interest factars See 2012 La Acts 763 1 An appellate court is bound to adjudge a case befare it in accordance with the law existing at the time of its decision Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible the new law applies on appeal even though it requires reversal of a trial court judgment that was correct under the law in effect at the time it was rendered Wooley v AmCare Health Plans of Louisiana Inc OS La App 1 Cir 10 944 2025 06 25 So 2d 668 673 In the absence of contrary legislative expression substantive laws apply prospectively only La C art 6 La R 1 Article 6 requires a two S 2 step inquiry 1 did the legislature express its intent regarding retrospective or prospective application and 2 if not is the law substantive procedural or interpretive existing Substantive laws establish new rules rights and duties or change ones Procedural laws prescribe a method remedy for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws Interpretive laws merely establish the meaning the interpreted law had from the time of its enactment Wooley v AmCare 944 So 2d at 672 see La C 73 art 6 Here the legislature did not express its intent for the amendments to Section 344 or Article 136 to apply retroactively Furthermore the amendments to Section 344 and Article 136 are substantive laws since these statutes establish additional conditions modifying the rights of family members to seek visitation of minor children Thus the amendments to Section 344 and Article 136 apply 7 prospectively only We will therefore apply the former versions of these statutes to the appeal before us Assuming the parents of a minor child are legally separated or living apart for a period of six months Section 344 required that the district court find in D its discretion that such visitation would be in the best interest of the child Article 136 allowed a relative including a grandparent not granted custody of a child the right to be granted reasonable visitation rights under extraordinary circumstances in addition to a consideration of the best interest factors In the event of a conflict between Article 136 and Sections 344 and 345 the former version of Louisiana Civil Code article 136 set forth that the provisions of the statute would supersede those of the civil code article Therefore the law required that the district court apply Section 344 which only required a showing that reasonable visitation rights would be in the best interest of the child Here the district court heard testimony from numerous witnesses regarding whether or not visitation with Mrs Severio would be in the best interest of M H Following the conclusion of evidence the court stated I have looked at all of the factors involve here and based on all of the factors I think it is in the best d interest of this child to have a relationship with this grandmother Based on our review of the record we cannot say the district court abused its discretion in granting reasonable visitation rights to the minar child grandmother Mrs s Severio DECREE Accardingly we affirm the judgment of the district court Costs of this appeal are assessed to Defendant William Mack Hill III Appellant AFFIRMED 8
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