In the Matter of Gracie Marie Melancon

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CU 1463 IN THE MATTER OF GRACIE MARIE MELANCON W Judgment rendered DEC 2 2 2010 On Appeal from the 22 Judicial District Court Parish of St Tammany State of Louisiana No 2009 15909 Division L The Honorable Dawn Amacker Judge Presiding Appellant Plaintiff Kristine M Berger Attorneysappearing on behalf of the PlaintiffAppellant Bernadette R Lee Edith H Morris Suzanne Ecuyer Bayle New Orleans Louisiana BEFORE KUHN PETTIGREW AND KLINE JJ J Judge William F Kline Jr retired is serving as judge pro temzpore by special appointment of the Louisiana Supreme Court KLINE J In this custody case the trial court on its own motion raised the exception of no cause of action and dismissed a nonparent unopposed petition to share s custody of a child with the biological mother Judgment was signed and petitioner appealed For the following reasons we recognize and maintain the no right of action exception and affirm the judgment STANDARD OF REVIEW and PERTINENT LAW No Cause ofAction In reviewing a trial court ruling sustaining an exception of no s cause of action the reviewing court subjects the case to a de novo review because the exception raises a question of law and the lower s court decision is based only on the sufficiency of the petition Harper v Layrisson 990544 p 5 La 1 Cir 4 764 App 00 10 2d So 1061 1064 The peremptory exception pleading the objection of no cause of action is a procedural device used to test whether under the allegations of the petition the law affords any remedy for the grievance asserted Id 000544 p 4 764 So at 1063 2d Every reasonable interpretation must be accorded to the language of the petition in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence Id The court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings Id 990544 p 5 764 So at 1063 2d A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief Id 990544 p 5 764 So at 1063 64 2d 2 SAC L C art 927 provides the following P B The court may not supply the objection of prescription which shall be specially pleaded The nonjoinder of a party preemption res judicata the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit or discharge in bankruptcy may be noticed by either the trial or appellate court on its own motion This court permitted the appellant to submit additional briefs on issues raised in oral argument that were not briefed These issues included interpretation of applicable Civil Code ailicics and the rights of a biological parent who donated sperm We acknowledge that in her supplemental brief appellant requested us to remand this matter to the trial court for a hearing on the best interest of the child We have considered these issues in rendering this decision LSA C art 1 does not contemplate shared custody between parents and non parents As discussed 32 within Art 133 is also inapplicable We suggest the appellant remedy if any lies in the legislative process s 0 No Right ofAction The peremptory exception pleading the objection of no right of action challenges whether plaintiff has an actual interest in bringing the action Mayeaux v Glover 082031 pp 45 La 1 App 12 10 31 So 1090 1093 Whether a person has a right of action depends 3d on whether the particular plaintiff belongs to the class in whose favor the law extends a remedy This exception questions whether the plaintiff has an interest in judicially enforcing the right asserted Id Louisiana Civil Code article 132 states as follows If the parents agree who is to have custody the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award In the absence of agreement or if the agreement is not in the best interest of the child the court shall award custody to the parents jointly however if custody in one is shown by clear and convincing evidence to serve the best interest of the child the court shall award custody to that parent Louisiana Civil Code article 133 states as follows If an award of joint custody or of sole custody to either parent would result in substantial harm to the child the court shall award custody to another person with whom the child has been living in a wholesome and stable environment or otherwise to any other person able to provide an adequate and stable environment BACKGROUND The minor child at issue was conceived by artificial insemination and has only one known biological parent her mother Colette Melancon Since her birth the child and her biological mother have resided in the home of plaintiffappellant Kristine M Berger Ms Melancon affidavit was filed with s the petition In her affidavit she avers that she consents to joint custody of the child being awarded to her and Kristine M Berger A consent judgment to this effect was submitted to the trial court The trial court did not sign the consent judgment Instead citing Black v Simms 081465 La 3 Cir 6 12 So 1140 the trial court raised App 09 10 3d and maintained on its own motion the exception of no cause of action The trial court handwrote an order denying the application for a consent judgment 3 The handwritten sentence said pleadings must allege and a finding by the Court must be made to conform to the trial court statement that an award of sole s custody to the parent would cause substantial harm to the child as per to La C art 133 This was memorialized in a formal judgment Ms Berger appealed In her appeal she alleges that the trial court erred 1 in refusing to sign the consent judgment of custody and 2 in requiring that she allege and prove that sole custody to the parent with whom petitioner seeks to share custody would result in substantial harm to the child DISCUSSION While the trial court based its ruling on LSAC art 133 Ms Berger C argues citing LSAC art 132 that since there is no dispute between the C biological mother and herself regarding the best interest of the child on the award of joint custody the trial court should have awarded custody in accordance with the mother wishes s Louisiana circumstance Civil Code article 32 1 is inapplicable to Ms s Berger LSAC art 132 discloses causes of action for shared or joint C custody only to legal parents Ms Berger is not a legal parent The focus on an exception of no right of action is on whether the particular plaintiff has a right to bring the suit Badeaux v Southwest Computer Bureau Inc 05 0612 05 pp 67 La 3 929 So 719 06 17 2d 1211 1216 17 Ms Berger has no right of action under LSAC art 132 since C she is not a member of the class of persons that has a legal interest in the subject matter of the litigation Id Accordingly we raise and maintain on our own the exception of no right of action as to any claim under LSAC art 132 C Louisiana Civil Code Article 133 is specific to an Award of custody to person other than a parent which is the circumstance before us in this case The language in article 133 presumes a dispute where some person is trying to 4 S a uoisi ac sn ao lou si ur q ai l5uin Yyl s a 7 uur tii 0 4urMOys i pa q p C ay uo uauiuio ou a aM v u nn y ue sqits s e r no o ayn sn eua u s a pY i s umsxnd o xa au aapun papa ou aq it t o ids t aad aasip s a au in o aa pue ai si uot o uTp au uaq11 b i iquz as zom 1 2 S I S b i ui S PZ OS6 6 d OSS 90 9 PI a ar o ua au ai jst n ul o uat ui ap aq uz uot xau ou pu ua s patjdd aq it as LU ui dxa an m t us I nn ar sa pansq o p ou saop uoi s pu snon uanbasuo aj dd i t un u iq uaum s p OS6 90 i 9 uediuo os i 6Z I j pu aja si nn n n S nsu ue a unQ u dxa passa ui dns auia zno au s ad i uoi au uipuau fq i ap a au a ouu ar pu Cpatu j ou t t sapinoad nn ay asn zn s a aj rtnn y i aq ar 1 dS xapun pasx suox a o spunoa x afqo i i Z anouxa ouu ag ra sy axaH pI i puau o iun u uanY ay ou zoddo paau s ua panouia aq ouu uoi aq a spuno au uaqrn b i Z i d ut i aCqo z S PZ 6Z6 I i dd n g ap xn ospn aas 6I L Z uI n a saMq 90 ng a ndwo nos I S d aas uoi ar puau o tun ad oddo 6 u t tur pjnous noa au uac uoi o a ao uoi o asn jd ui ad sa usiiq t s au i o ii ta uoi au ui suot au ads zaui i ad ait 3I l utpa uoi asn ou uor z ao o da xa a cu ut utui sqns ue i jo u ua uimous ou pip zno i ar t uou d inn z noy ua pao u r ptiq a o u inn y sn po d us aa o uax iuuad ou saop jduits f nn a a uI pltq au o u i ur nsaa po j uassa yu sqns d u z zr ua i au q po aios u a o paji a uaunn i sna ajj Js pjnonn z Y ai apun uot o bLZ asn aii a o pajT s a sy Ci u xag uanbasuo LLZ P LZ 0 C l I S ZZ d bBSZ ap n arw P g o tu y au o ui j ui jnsa pjnonn ua za o po aios o ao po u ue zi sqns d ia sna sna uiof o i m p u u s utnno o u nd ns zodn Cpo o pal juo si ua sn ua i duou u j Luo PIiu sqns u i 3 oad a intermediate court and pursuant to our constitutional duty must apply the laws of this state as promulgated by the Louisiana legislature and interpreted by the Louisiana Supreme Court State v Barclay 591 So 1178 1185 La 1 2d App Cir 4 Accordingly we affirm the trial court judgment 92 3 DECREE For the above stated reasons we maintain the Exception of No Right of Action raised sua sponte We also affirm the trial court judgment sustaining the Exception of No Cause of Action The cost of this appeal is assessed to Kristine M Berger EXCEPTIONS OF NO RIGHT OF ACTION RAISED SUA SPONTE SUSTAINED JUDGMENT AFFIRMED 71 IN THE MATTER FIRST CIRCUIT OF COURT OF APPEAL GRACIE MARIE STATE OF LOUISIANA MELANCON NO 2010 CU 1463 KUHN J dissenting in part Although the allegations of her petition do not state a cause of action the trial court erred in failing to allow petitioner an opportunity to amend her petition to state a cause of action under La C art 1 or to show whether 32 she has a right of action under La C art 133 Accordingly I would remand to allow her to do so See a C art 934 P NUMBER 2010 CU 1463 IN THE MATTER OF GRACIE MARIE MELANCON COURT OF APPEAL FIRST CIRCUIT STATE OF LOUISIANA BEFORE KUHN PETTIGREW JJ and KLINE J pro tempore PETTIGREW CONCURS AND ASSIGNS REASONS I am constrained to follow the law as it p resent Y exists in the State of Louisiana I therefore agree with the majority I further note that if there is going to be any change of the existing law it should be addressed by the Louisiana State Legislature Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court

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