Vickie Leigh Wesley VS John Allen David

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA i COURT OF APPEAL j_ , W FIRST CIRCliIT IvUMBER 2013 CU 1500 VICKIE LEIGH WESLEY VERSUS JOHN ALLEN DAVID Judgment Rendered: FEB ? fs % 1 Appealed from the 21 s` Judicial District Court In and for the Parish of Livingston, Louisiana Trial Court Number 133, 357 Honorable Elizabeth Wolfe, Judge Erik L. Burns Attorney for Appellant Plaintiff Vickie Leigh Wesley Denham Springs, LA Debra Bracey Attorney for Appellee Baton Rouge, LA Defendant John Allen David M:* BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. WELCH, J. Vickie Leigh Wesley appeals a trial court judgment awarding her and John Allen David joint custody of the minor child, C.J.D., designating John David as the child' s domiciliary parent, and awarding her specific visitation. Finding no error in the judgment of the trial court, we affirm. FACTUAL AND PROCEDURAL HISTORY Vickie Wesley and John David were married on November 7, 2009. The minor child, C. J. D., was born on November 30, 2008, before the marriage of the parties, and John David was listed as the child' s father on the birth certificate.' John David' s name was included on the minar child' s record of birth because he and Vickie Wesley executed a voluntary acknowledgement of paternity ( by authentic act) in accordance with La. R.S. 4034(B)( 1)( h)( ii). The parties physically separated on May 25, 2010, and a year later, on May 27, 2011, Vickie Wesley filed a petition for divarce requesting, among other things, that the parties be awarded joint custody of C.J. D., that she be designated as the child' s domiciliary parent, and that John David be awarded specific physical custodial periods consisting of every other weekend. In response, John David filed an answer and reconventional demand seeking that he be awarded primary physical custody of C.7. D., that he be designated as the child' s domiciliary parent, and that Vickie Wesley be awarded specific physical custodial periods consisting of every other weekend. When the divorce proceedings were commenced, the minor child had been in the physical care, custody and control of John David; therefore, pending a trial on the issue of custody, Vickie Wesley was awarded interim 1 Although the minor child' s birth certificate is not coniained in the record before us, both parties have declared in their pleadings that John David was listed on the birth certificate as the child' s father. These declarations by the parties amount to a judicial confession; therefore, evidence of tlus fact was not necessary. See La. C. C. art. 1853. 2 The authentic act of acknowledgement of paternity executed by both John David and Vickie Wesley is contained in the record. 2 visitation with C.J.D. consisting of every other weekend from Thursday at 5: 00 p.m. until Sunday at 5: 00 p.m. beginning July 8, 2011. On June 11, 2012, Vickie Wesley filed a peremptory exception raising the objections of no right of action and no cause of action to seek custody. In this exception, Vickie Wesley asserted that although Jol,n David was listed on the birth certificate as the father of C. J.D., he was neither " the legal nor biological father of the She further asserted that she was pregnant with the minor child minor child." at the time she commenced her dating relationship with John David; therefore, it was physically impossible for him to be the biological father. She also asserted that the parties were not married at the time of the birth of the child; therefore, John David could not be the legal father. Based on these assertions, Vickie Wesley contended that Jolu1 David did not have the right to seek an award of custody of C. J. D. as a parent because he was a non- parent, and further, that he failed to state a cause of action for an award of custody to a non- parent under La. C.C. art. 133 because there are no allegations suggesting that substantial harm would come to the minor child if she were awarded custody. 3 After a hearing, the trial court overruled the objections of no right of action and no cause of action. Thereafter, on 7uly 9, 2012, Vickie Wesley filed a supplemental and amending petition for divorce, seeking to amend her original petition for divorce so as to assert the same factual allegations set forth in her peremptory exception and requesting orders compelling John David to submit to DNA testing for purposes of determining whether he was the biological father of C. J.D. and to return the physical custody of the child to her. Following DNA testing and the receipt of the results, on August 13, 2012, Vickie Wesley filed another peremptory exception 3 Louisiana Civil Code article 133 provides: 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. 3 raising the objections of no right of action. and no cause of action, essentially making the same allegations as response to the supplemental the previously filed peremptory exception. In and amending petition, John David filed a peremptory exception raising the objeetions of no cause of action and peremption, essentially claiming that Vickie R'esley was precluded from challenging the paternity of the child based on peremption and that he was the presumed legal father of the minar child. Following a hearing on the pending exceptions, by judgment signed on November 20, 2012, the trial court overruled the peremptory exception filed by Vickie Wesley and sustained the peremptory exception filed by John David."' On March 20, 2013, following a trial on the merits on the issue of custody, the trial court rendered judgment aw arding the parties joint custody of the minor child, C. J. D., designating John David as the child' s domiciliary parent, and awarding Vickie Wesley physical custodiai periods consisting of every- other weekend from Friday at 5: 00 p.m. until Sunday at 6: 00 p,m. during the school year, the first three weeks of June and July, and first week of August. The trial court also ordered the parties to share holidays as equally as possible. A judgment in accordance with the trial court' s ruling was signed on May 31, 2013, and it is from this judgment that Vickie Wesley has appealed. 4 The November 20, 2012 judgment, insofar as it overruied Vickie Wesley' s peremptory exception, was clearly a non- appealable interlocutory judgment. See La. C. C.P. art. 1841 and 2083. However, with regard to John Davi3' s peremptory exception, although the judgment reflected that the trial court sustained the exception, the judgment did not contain appropriate decretal language specifying the relief granted, i.e_, either an order to amend the petition or the dismissal of Vickie Wesley' s claims. See La. C. C. P. art. 934. Therefore, that portion of the judgment was not a final, appealable judgmznt. See Johnson v. Mount Pilgrim Baptist Chureh, 2005- 0337 ( La. App. 1s` Cir. 3/ 24/ 06), 934 So. 2d 66, 67 ( holding that a final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordexed, the party against whom the ruling is ordered, and the relief that is granted or denied, and that a judgment that sustains the objection of no cause of action, yet does not contain decretal language; cannot be considered as a final judgment for purpose of an appeal). Accoxdingly, we construe the entire November 20, 2012 judgment as an interlocutory judgment. 4 On appeal, Vickie Wesley essentially claims that the trial court erred in: ( 1) overruling her peremptory exception raising the objections of no right of action and no cause of action and sustaining the peremptory exception raising the objections of no cause of action and peremption filed by John David; and ( 2) finding that it was in the best interest of C.7. D. that John David be designated as the child' s domiciliary parent. LAW AND DISCUSSION Peremptory Exceptions A cause of action, for purposes o f the peremptory exception, is defined as the operative facts that give rise to the plaintiff' s right to judicially assert the action against the defendant. Ramey v. DeCaire, 2003- 1299 ( La. 3/ 19/ 04), 869 So. 2d 114, 118. The function of the peremptory exception raising 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. Id. The burden of demonstrating that no cause of action has been stated is on the party filing the exception. Adams v. Owens Corning Fiberglas Corp., 2004 1296 ( La. App. ls` Cir. 9/ 23/ OS), 921 So. 2d 972, 975, writ denied, 2005- 2501 ( La. 4/ 17/ 06), 926 So. 2d 514. Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. See La. C. C.P. art. 931; Ramey, 869 So. 2d at 118. For the purpose of determining the issues raised by the exception, all facts pled in the petition must be accepted as true. Id. If the petition alleges sufficient facts to establish a cause of action cognizable in law, the exception raising the objection of no cause of action must fail. Rebardi v. 5 Although the November 20, 2012 trial court judgment relating to both parties' peremptory exceptions were non-appealable, interlocutory judgments, the May 31, 2013 judgment relating to custody is a final appealable judgment See footnote 4 herein; La. C. C.P. art. 1841 and 2083. When an unrestricted appeal is taken from a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to review of the final judgment. See Judson v. Davis, 2004- 1699 ( La. App. 15` Cir. 6/ 29/ OS), 916 So. 2d ll06, 1112, writ denied, 2005- 1998 ( La. 2/ 10/ 06), 924 So. 2d 167. 5 Crewboats, Inc., 2004- 0641 ( La. App. 1" Cir. 2i11/ OS), 906 So. 2d 455, 457, Any reasonable doubt concerning the sufficiency of' the petition nnust be resolved in favor of finding that a cause of action has been stated.. Belle Pass Terminal, Inc. v. Jolin, Inc., 92- 1544, 92- 1545 writ La. App. lst C; ir. 3/ 11/ 94), 634 So. 2d 466, 493, denied, 94- 0906 ( La. 6% 17i94), 638 So. 2d 1094. Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo, because the exception raises a question of law, and the trial court' s decision is based only on the sufficiency of the petition. Ramey, 869 So. 2d at 119. The peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. See La. C.C. P. art. 927( A)( 6). Simply stated, the objectipn of no right of action tests whether this particular plaintiff, as a matter of law, has an interest in the claim sued on. To prevail on a peremptory exception pleading the objection of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. Whether a plaintiff has a right of action is ultimately a question of law; therefore, it is reviewed de novo on appeal. OXY USA Inc. v. Quintana Production Company, 2011- 0047 ( La. App. lst Cir, 10119/ 11), 79 So. 3d 366, 376, writ denied, 2012 0024 ( La. 312/ 12), 84 So3d 53E. Vickie Wesley' s peremptory exception raising the objections of no cause of action and no right of action pertain to John David' s request for custody, as set forth in his reconventional demand. In her exceptaon, she claims that John David is not C. J. D.' s biological father, that he, therefore, does not have the right to seek custody as a parent, and that he did not make allegations sufficient to state a cause of action for custody by a non-parent. In John David' s peremptory exception. raising the objections of no cause of action and peremption, he challenges Vickie Wesley' s attempt to contest his 6 paternity, as set forth in her supplemental and amended petition for divorce. He claims that Vickie Wesley does not have a cause of action to contest his paternity, and that any action she may have been able to bring has been perempted. Louisiana Civil Code article 195 provides: A man who marries the mother of a child not filiated to another man and who, with the concurrence of the mother, acknowledges the child by authentic act or by signin the birth certificate is presumed to be the father of that child. The husband may disavow paternity of the child as provided in La. C. C. art.] 187. The action for disavowal is subject to a peremptive period of one hundred eighty days. This peremptive period commences to run from the day of the marriage or the acknowledgment, whichever occurs later. The record in this matter establishes that C. J.D. was born on November 30, 2008. At that time, C. J. D. was not filiated to another man. John David, with the concurrence of Vickie Wesley, acknowledged C. J.D. by authentic act on December 1, 2008, and he was listed as the child' s father on the birth certificate.6 The record 6 We note that Vickie Wesley argues that John David' s authentic act of acknowledgement of paternity is invalid because he is not the child' s biological father and that only a biological father can acknowledge paternity. However, we find the fact that La. C. C. art. 195 provides for the disavowal of the child by the husband within a certain pereLnptive period indicates that there are there are instances where a man mazries the mother of a child and executes an acknowledgment of paternity without being the child' s biological father. In such cases, the remedy provided by law is that the father may file an actioxi to disavow the child within the applicable peremptive period; it does not render the authentic act of acknowledgment invalid. See La. C.C. art. ] 95. Furthermore, we & nd that the case relied upon by Vickie Wesley for hex argument in this regard, 5tate, in the Interest of A.L., 2009- 1565 ( La. App. 3rd Cir. 4/ 7/ 10), 34 So. 3d 416, writ denied, 2010- 1017 ( La. 5/ 28/ 10), 36 So3d 2 6,is clearly distinguishable and not applicable to this case. First, State, in the Interest of A.L. in olved the presumption set for[h in La. C. C. art. 196, which is a presumption of paternity solely in fa or of the child when a man acknowledges the child ( but is never married to the child' s mother), apd is substanrively different from the presumption set forth in La. C.C. art. 195, which is the presumption applicable to this case. Additionally, in State, in the Interest of A.L.; Michael Lange, who was neither married to nor sexually involved with the mother of the child at issue, acknowledged the child by signing child' s birth certificate; he did not execute an authentic act of acknowledgement. Id. at 417-419. One month after signing the child' s birth certificate, Michael Lange disavowed paternity of the child. Id. at 418 n. l. A yeaz and a half later, he sought custody of the child based on the fact that he had signed the birth certificate. Id. at 419. Given that Michael Lange had already disavowed patemity of the child, the court properly concluded that the acknowledgment of the child ( by signing the birth certifcate) was " not valid and [ was] without legal effect," and thus could not form the basis of his request for custody of the child. Id. at 419- 420. In this case, John David executed an authentic act of acknowledgment, married the child' s mother, and has not disavowed paternity. Thus, according to La, C. C. art. 195, he remains the presumed father of the child. also establishes that thereafter, on IV'ovember 7, 2009, John David and Vickie Wesley were presumed to married. Thus, according to La. C. C. art. 195, John David is be the father C. J.D. of Notably, John David has not sought to disavow paternity of the child. Therefore, we ; ind John David, has both a right of action and a cause of action to seek custody of C.J.D. as a parent. See La. C. C. art. 105, 131, 132; La. R.S. 9: 291. With regard to Vickie Wesley' s action to establish that John David is not the father of C. J.D., from our review of the law on filiation, i.e., La. C. C. arts. 178- 199, the mother' s action to contest a presumption of paternity is limited to the circumstances set forth in La. C. C. art. 191; which provides: The mother of a child may institute an action to establish both that her former husband is not the father of the child and that her present husband is the father. This action may be instituted only if the present husband has acknowledged the child by authentic act or by signing the birth certificate. Based on our review of the record, we find that Vickie Wesley has failed to state a cause of action to establish tkiat 7ohn David is not the father of C.7.D. or otherwise to challenge his presumed paternity of C.J.D. under La. C. C. art. 191. Vickie ' esley is not currently married, and therefare, cannot " establish both that her former husband [ i.e., John David] is not the father of the child and that her present husband is the father[,]" the child by authentic act or by or that her " present husband has acknowledged signing the birth certificate." See La. C. C. art. 191. Furthermore, La. C.C. art. 193 provides that the mother' s action " shall be instituted within a peremptive period of one hundred eighty days from the marriage to her present husband and also within two years from the day of the birth of the child." As the record establishes that C. J.D. was born on November 30, 2008, and that Vickie Wesley did not institute her action to establish that John David was not the father of C. J. D. until three and a half years after the birth of C.J. D. ( i.e., when she 8 filed her amended petition for divorce on . iuty 9, 2012), any action by her to challenge John David' s presumed paternity of the child has been perempted. Accordingly, we find that the trial court properly overruled Vickie Wesley' s peremptory exception raising the objections of no cause of action and no right of action and sustained John Wesley' s peremptozy exception raising the objection of no cause of action and peremption, and the November 20, 2012 judgznent of the trial court is affirmed. Custody Each child custody case must be viewed in light of its own particular set of facts and circumstances. Perry v. Monistere, 2008- 1629, 2008- 1630 ( La. App. lst Cir. 12/23/ 08), 4 So. 3d 850, 852. Louisiana Civil Code article 131 provides "[ i] n a proceeding for divorce ar thereafter, the court shall award custody of a child in accordance with the best interest of the child." Thus, the paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97- 0541, 97- 0577 ( La. 2/ 6198), 708 So. 2d 73i, 738. In determining the best interest of the child, La. C.C. art. 134 provides: The court sha11 consider all relevant factors in determining the best interest of the child. Such factors ma} 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 capaeity 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. 9 6) The maral 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 kistory of the child. 9) The reasonable preference of the child, if the court deems the child to be of sufficienY 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. 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 list of factors set forth in this article is non- exclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. La. GC. art. 134, comment ( b). Additionally, the " best interest of the child" test under La. C. C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favaring ar opposing custody in the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 2006- 0594 ( La. App. lst Cir. 3/ 23/ 07), 960 So. 2d 186, 191. Hence, every child custody case is to be viewed on its own particular set of facts and the relationships involved, with the paramount goal of reaching a decision that is in the best interest of the child. Id. The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court' s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Thus, a trial court' s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello, 960 So. 2d at 191- 92. 10 In this case, and as in most child ; ustody cases, the trial court' s determination as to what was in the best : nterest of C. J.D. was based heavily on factual findings. It is well settled that an appellate court cannot set aside a trial court' s findings of fact in the absence of manitest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 844 ( L,a. 1989). If the findings are reasonable in light of the record revi wed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would haee weighed the evidence differently. Id. On appeal, Vickie Wesley essentially contends that the trial court misapplied the factors set forth in La. G.C. art. 134; that it erred in finding that factors 2 and 3 weighed in favar of John David and should have given more weight to factor 10, which the trial court found weighed in favor of Vickie Wesley; and that it erred in finding that it was in the best interest of C,J:D. that John David be designated as the domiciliary parent. In oral reasons for judgment, the trial court made the following factual findings and conclusions: The La. C. C. art.] 134 factors which I reviewed, number one, I don' t find in favor of either party. I find both parties have great love, affection, and emotional ties w ith for the child. Number two, I find for the father. The father' s been, for the most part, at least ixt the last co xple of years; the one to have him in school, to give him what he needs daily on a daily basis. Number three, I find in favor of the father. The mater ¢ial needs of the child, the father is providing far them and has provided them except when he' s in her custody.... And so the the financial is a big part of raising children-- rearing children and she has not contributed very much to that at a11 from the testimony that I heard. And even in her own testimony she said she should have cione it. Yes, she should have. Number four, I don' t find in favor of either party. When the child' s been with the mother, he' s just been in one or two places, in the home in Watson or the place where she is now with her mother. And also, the father, he' s he' s been for 11 most of his life where with his parents, and the child' s been there in that environment when he' s with his father. Number five, I don' t find in favor of either party. I think the child' s got feels like he' s got a permanent family at at both homes. Number six, I don' t find in favor of either party. I umber seven, I don' t find in favor of either party. Number eight, home, school, and community history of the child, I find in favor of the father. He' s mainly gone to school in Pointe Coupee. That' s where he' s registered; that' s where he' s got the family history the school history. All right. Number nine is not applicable. Number ten, from the testimony, it appears the parties have it a problem informing each other of what' s going on. Sounds like the mother has attempted more to inform the father of things going on with the child, so I find in favor of the mother in number ten. Number 11 doesn' t really apply. In fact, if it weren' t for the distance between the two parties, I I would think that they could have more of a shared custody. But the the difference in the in the in the distance from where they live is is a problem. The party who doesn' t have primary custody could could have more of a hand in it, but they live in two different parishes, two different school districts. It' s it' s a Otherwise, I I would go more problem. towards a closer shared custody. Number 12, I find in favor of the father. He and his mother, of course helping, have the responsibility for the care and rearing of the child for the most part. So Pm going to find for the father. I' m going to award him primary domiciliary custody, make him primary domiciliary parent. But this is joint custody. And let me just say the father has joint So that means the mother has is to have access to all custody. medical, all school. And the mother, of course, with the judgment the mother has access to everything. She' s going to be on the pickup list, or a contact. She can pick the child up from school. She needs to know about all the events at school, mother' s day' s at school, Christmas parties, Easter parties whatever. She is certainly entitled to be involved, and it' s in the best interest of the child that she be involved. But I do find it' s in the best interest of the child after reviewing the factors that the father should be the primary domiciliary parent, with custody to the mother every other Friday at 5: 00 p.m. to Sunday at 6: 00 p. m.... every week on Pm going to Wednesday' s order phone contact with [ C. J. D.] on I am going to award extended .... summer visitation for the mother of three weeks in June, three weeks 12 in July, and the first week in August. Amd I order the holidays to be shared. ... It' s unfortunate, again, the parties don' t live closer, I think the mother could have more of a hand and more time than just a few days a month with the child. Butl do find it' s in the best interest of the I child for what Pve ruled. And as much time as is possible that the mother can be with the child other than what Pve set out, I would just encourage that. This is a very young child, who I' m sure needs both parents. And and the father is doing a ery good job in in rearing of him, an[ d] the mother can certainly contribute and certainly has the and the responsibility to be involved in everything, like I right and said, at school, medical. Thus, in applying the factors set forth in La. C.C. art. 134, the trial court made a factual determination that four of the factors weighed in favor of John David ( factors 2, 3, 8, and 12), one factor weighed in favor of Vickie V6'esley factor 10), and that the other factors were either not applicable or did not favor either party over the other ( factors 1, 4, 5, 6, 7, 9; and 11). This court has carefully reciewed the arguments presented in this appeal, carefully examined the entire record, and studied the trial court' s oral reasons for judgment, factual findings; and conclusions. The trial court' s determination tt at factors 2, 3, 8, and 12 weighed in favor of John David and that factor 10 weighed in favar of Vickie Wesley are fully supported by the testimonial evidence in the record. In weighing and balancing these factors, along with the other faators that the trial court found did not favor one party over the other, we cannot say that the trial court abused its vast discretion in concluding that it was in the best interest of C.J.D. that John David be designated as the domiciliary parent. Accordingly, we affirm the May 31, 2013 judgment of the trial court. CONCLUSION For all of the above and foregoing reasons, the November 20, 2012 judgment relating to the parties' peremptory exceptions is affirmed, and the May 13 31, 2013 judgment of the trial court relating to chald cnstody is affirmed. All costs of this appeal are assessed to the plaintitr(appellant; Vickie Leigh Wesley. NOVEMBER 20, 2012 JUDGMENT AFFI12'VIED; MAY 31, 2013 JUDGMENT AFFIRMED. 14

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