WALL v. GALIANO III (2025)

This is an appeal from a child custody judgment that awarded joint custody to the mother and father and designated the mother as the domiciliary parent. After review, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Alaina Wall and Dominick Galiano, III were married on July 9, 2015, and divorced on February 24, 2021. One child, G.P.G., was born of the marriage on November 12, 2018. G.P.G. has special medical needs due to health issues.

Ms. Wall filed a petition for divorce on September 17,2019, asking for joint custody of G.P.G. and that she be designated the domiciliary parent with primary physical custody contending that she was G.P.G.’s primary caretaker. She also requested that the trial court order a mental health evaluation of Mr. Galiano. Mr. Galiano filed an answer and reconventional demand, asking for joint custody and to be designated the domiciliary parent, and requesting that the trial court order a mental health evaluation of Ms. Wall.

On February 10, 2020, the trial court ordered mental health evaluations of both parties. The case went before a hearing officer ¹ who recommended shared custody with Ms. Wall designated as the domiciliary parent. On March 2, 2020, the trial court signed a temporary order adopting those recommendations, pending a hearing.

On March 27, 2020, Mr. Galiano filed an ex parte rule for emergency custody in proper person. Mr. Galiano asked for emergency sole custody due to G.P.G.’s “continued exposure to public places” during a COVID-19 outbreak. The trial court granted the request on March 31, 2020, and set the matter for a hearing before a hearing officer. Ms. Wall filed an ex parte motion to vacate the order for sole custody, and on April 9, 2020, the trial court vacated the previous order and granted joint custody with Ms. Wall designated as the domiciliary parent. Mr. Galiano's request for emergency sole custody was later denied.

On May 27, 2020, Mr. Galiano filed an ex parte rule to establish custody and for emergency custody in proper person, based upon Ms. Wall's arrest for home invasion. On May 28, 2020, the trial court granted that request, granted Ms. Wall supervised visitation, and set the matter for a hearing before a hearing officer. Thereafter, at a temporary custody hearing before a hearing officer on June 19, 2020, the parties stipulated to shared custody, which was conditioned upon Ms. Wall moving into her new apartment.

Ms. Wall filed a motion for contempt on September 4, 2020, maintaining that Mr. Galiano had failed to begin the mental health evaluation process and was intentionally stalling the matter. After a hearing, the trial court found Mr. Galiano in contempt on December 29, 2020, for failure to submit to a custody and mental health evaluation as ordered by the trial court. He was sentenced to serve five days in the St. Tammany Parish Jail, fined $250.00, and ordered to register and pay for his share of the evaluation by December 15, 2020. He was also ordered to pay court costs of $245.00 and attorney fees of $1,000.00 to Ms. Wall by January 10, 2021.

On February 19, 2021, Mr. Galiano filed a rule for emergency sole custody based upon Ms. Wall giving G.P.G. food two hours before a medical treatment requiring sedation. The rule was denied by the trial court and set for a hearing. Mr. Galiano then sent an email to the trial court advising that he did not wish to proceed with the emergency custody hearing.

Ms. Wall filed another rule for contempt on March 3, 2021, based in part upon Mr. Galiano making unilateral decisions on G.P.G.’s medical care, violating the custody judgment, and usurping Ms. Wall's role as domiciliary parent. After a hearing, the trial court found Mr. Galiano in contempt for failing to reimburse Ms. Wall for G.P.G.’s medical expenses in the amount of $683.50, for making unilateral decisions on medical care, for violating the custody order, for usurping Ms. Wall's role as domiciliary parent, and for failing to make final payment on the custody evaluation causing its delay. Further, the trial court ordered that the sentence previously imposed in the December 29, 2020 judgment, which had been suspended, was reinstated and that Mr. Galiano was to serve five days in St. Tammany Parish Jail, plus pay a court fine of $250.00. Additionally, Mr. Galiano was ordered to serve an additional ten days in St. Tammany Parish Jail, plus pay $3,500.00 in attorney fees to Ms. Wall's counsel, and pay court costs of $245.00 and $180.00. The trial court also set a compliance hearing. The fifteen days of jail time was suspended conditioned upon Mr. Galiano paying the attorney fees, court costs, and medical fees by August 27, 2021. After a compliance hearing on October 13, 2021, the trial court found Mr. Galiano was not in compliance, and he was ordered to pay Ms. Wall an additional attorney fee of $600.00. He was ordered to pay the amount in full at the rate of $1,000.00 per month to Ms. Wall's counsel on the first of each month starting November 1, 2021.

Mr. Galiano filed a motion for emergency sole custody on February 24, 2022, based upon Ms. Wall's abuse of alcohol, prescription and illegal drugs, and domestic violence incidences with her boyfriend in the presence of G.P.G. On February 25, 2022, the trial court denied the motion for sole custody, but ordered Ms. Wall's custody to be supervised by G.P.G.’s maternal grandparents, and ordered Ms. Wall to submit to immediate drug testing, and set the matter for a hearing.

After a hearing on March 11, 2022, the trial court ordered Ms. Wall to submit to weekly drug tests and granted her visitation supervised by one of G.P.G.’s maternal grandparents. That order was signed on March 25, 2022. Also on March 25, 2022, the parties agreed to an interim consent judgment maintaining joint custody, designating Mr. Galiano as the domiciliary parent pending the hearing officer conference or further orders, and suspending Ms. Wall's custodial time while she went to inpatient treatment for substance abuse.

On October 20, 2022, Mr. Galiano filed an amended and supplemental reconventional demand, asking for sole custody due to Ms. Wall's drug abuse, criminal arrest, and domestic violence issues. On that same date, Mr. Galiano filed a motion for contempt, alleging Ms. Wall failed to reimburse him for G.P.G.’s expenses, failed to produce drug test results, failed to sign a medical release, and failed to exercise visitation. On October 28, 2022, the parties entered into a consent judgment, agreeing in part that Ms. Wall's physical custody of G.P.G. would be supervised at all times, and agreeing to the supervisors to be used. All prior judgments not modified remained in place. After a hearing on March 16, 2023, the parties entered into another consent judgment and interim order, signed by the trial court on March 27, 2023. This interim consent judgment provided that the parties would continue joint custody, but with Mr. Galiano as the domiciliary parent. Ms. Wall's custody was no longer supervised, though she was required to continue drug screens bi-monthly. Ms. Wall was granted custody every other weekend, as well as every other Tuesday and Wednesday, and the parties were granted custody for alternating weeks in the summer.

On August 18, 2023, the parties entered into another consent judgment. This judgment granted Ms. Wall custody every weekend, and all provisions of the previous consent judgments remained in effect. On August 24, 2023, the trial court signed a judgment denying Mr. Galiano's motion for contempt.

The matter proceeded to trial on December 1, 2023, January 5, 2024, and April 2, 2024, for a determination of child custody. Thereafter, the trial court awarded the parties joint custody of G.P.G. and designated Ms. Wall as the domiciliary parent. The judgment provided that Mr. Galiano have physical custody of G.P.G. on the first, third, and fifth weekends of each month, and that Mr. Galiano have physical custody on the second and fourth weeks of each month on Wednesdays from after school until 7:00 p.m. The judgment also provided that “in the summer” Mr. Galiano have physical custody for the first two weeks of June and July. The judgment further provided that Mr. Galiano be restricted from making non-emergent medical appointments, from having discussions with institutions related to benefits G.P.G. may receive, and from cancelling and rescheduling any medical appointment for G.P.G. Further, the judgment provided that Mr. Galiano be required to notify Ms. Wall within fifteen minutes of his arrival at an emergency room or urgent care and that his failure to do so would result in forfeiture of his following weekend of custody if it occurred during the school year, or one week of summer custody if it happened during the summer. The judgment was signed on May 10, 2024. The trial court also issued lengthy reasons for judgment. Mr. Galiano appeals that judgment.

On appeal, Mr. Galiano makes the following assignments of error.

1. It was legal error for the [trial court] to hear the issue of legal custody (the domiciliary parent designation) as an initial determination instead of as a modification as the parties stipulated three times to [Mr.] Galiano as domiciliary parent, including one [j]udgment that was a final judgment under Local Rules.

2. It was legal error for the [trial court] to hold factor [number eight] of La. [C.C. art.] 134 as neutral. [Ms.] Wall should not have been awarded primary physical and legal custody considering her history of substance abuse and criminal activity.

3. It was legal error for the [trial court] to prohibit the father and joint custodian, [Mr.] Galiano, from making routine medical appointments and speaking to institutions that awarded the child benefits when such relief was not sought, resulting in a de facto award of sole custody. The [trial court] is prohibited from removing custodial days as a sanction for contempt.

4. It was legal error that the [trial court] found [Mr.] Galiano in contempt of a court order as the [j]udgment of August 9, 2021, previously addressed the issue and it was res judicata. Additionally, no evidence or testimony was provided to support the judgment.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, Mr. Galiano maintains that it was legal error for the trial court to hear the issue of child custody as an initial determination instead of as a modification.

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Hensgens v. Hensgens, 94-1200 (La. App. 3 Cir. 3/15/95), 653 So.2d 48, 52, writ denied, 95-1488 (La. 9/22/95), 660 So.2d 478; T.D. v. F.X.A., 2013-0453 (La. App. 1 Cir. 1/9/14), 148 So.3d 187, 192. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. T.D., 148 So.3d at 192. When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is “so deleterious to the child as to justify a modification of the custody decree,” or of proving “by clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” T.D., 148 So.3d at 192.

The trial court noted at the start of the trial, on December 1,2023, that the matter had been pending since 2019, that there had been multiple interim consent judgments and continuances, and that the trial was for an initial determination of custody. Also, notably, Mr. Galiano referred to the previous judgments as consent judgments in his motions to continue the trial. After review of the record, we find that the previous judgments, outlined in the facts of this opinion, were not considered decrees. Thus, the trial court did not err in hearing the issue of child custody as an initial determination, and this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, Mr. Galiano maintains that it was legal error for the trial court to find that factor eight of La. C.C. art. 134 was neutral, and that Ms. Wall should not have been awarded primary physical and legal custody considering her history of substance abuse and criminal activity.

A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello v. Martello, 2006-0594 (La. App. 1 Cir. 3/23/07), 960 So.2d 186, 191-92. The best interest of the child is the sole criterion to be met in making a custody award, as the trial court sits as a sort of fiduciary on behalf of the child and must pursue actively that course of conduct which will be of the greatest benefit to the child. C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So.3d 16, 28, citing Turner v. Turner, 455 So.2d 1374, 1378 (La. 1984). It is the child's emotional, physical, material and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. The legislature has mandated that the court look only to the child's interests so that the court can fulfill its obligations to the child. Boudreaux v. Webster, 2022-1282 (La. App. 1 Cir. 5/19/23), 2023 WL 3573901, *4 (unpublished), writ denied, 2023-00848 (La. 9/6/23), 369 So.3d 1269.

Louisiana Civil Code article 134(A) provides the relevant factors to be considered in determining the best interest of the child, including:

(1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.

(2) The love, affection, and other emotional ties between each party and the child.

(3) 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.

(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(7) The moral fitness of each party, insofar as it affects the welfare of the child.

(8) The history of substance abuse, violence, or criminal activity of any party.

(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.

(10) The home, school, and community history of the child.

(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.

(13) The distance between the respective residences of the parties.

(14) The responsibility for the care and rearing of the child previously exercised by each party.

Factor eight requires consideration of the history of substance abuse, violence, or criminal activity of any party. Cassidy Palmisano, a licensed professional counselor and an expert in substance abuse, testified that she had seen Ms. Wall at least twice a month since October 2022. She further testified that Ms. Wall was in recovery from substance abuse and was approaching two years of sobriety, which she considered sustained remission from substance abuse.

Ms. Wall testified that she was an inpatient at Palmetto Addiction Recovery Center from March 17, 2022 through early May 2022, and then attended Palmetto's intensive outpatient treatment, which she completed on June 15, 2022. She testified that she participated in AA meetings, had ongoing contact with her AA sponsor, went to individual and group counseling, and was randomly drug tested twice a month.

Laura Retzloff was Ms. Wall's case manager at The Nehemiah project, an outpatient twelve month recovery program that Ms. Wall enrolled in voluntarily in July 2023. In a letter, Ms. Retzloff reported that Ms. Wall's program included individual counseling, group counseling, weekly case management meetings, weekly homework assignments, and random drug tests, which occurred at least weekly. Ms. Retzloff also reported that Ms. Wall had remained faithful to the appointments and program requirements, had passed all drug tests, and was scheduled to graduate from the program in June of 2024.

Ms. Wall testified that her son, E.J., was born healthy on June 22, 2022, with no alcohol or drugs in his system. She testified that the only drug she had taken was Zoloft that was prescribed for anxiety and depression. Ms. Wall's ARCPoint drug tests from August 9, 2022 through December 19, 2023 showed she was tested twice a month and all test results were negative, with the exception of a positive result for cannabis on January 23, 2023. Ms. Wall then had a negative hair test from J&B Industries from a sample dated February 20, 2023.

Regarding criminal behavior, Ms. Wall was arrested in May of 2020 for home invasion. Ms. Wall testified she was having a dispute with a neighbor about the neighbor cursing and causing a scene and she called the police. She testified that when she went to the neighbor's house, the neighbor pushed her into the neighbor's home and held her down. After the arrest, Ms. Wall was accepted into a diversion program. Ms. Wall successfully completed the diversion program and was informed by the district attorney's office that the charges against her would be dismissed.

In its reasons for judgment, the trial court found that “[Ms. Wall] has made great strides in proving to [Mr. Galiano] and the [trial court] that she is and intends to remain sober.” The trial court determined that Ms. Wall had maintained her sobriety for two years and that the wellbeing of G.P.G. was protected with safety precautions that the trial court put in place and with Mr. Galiano keeping a watchful eye. After review of the record, we find no abuse of discretion in the trial court finding that factor eight of La. C.C. art 134 was neutral.

The trial court gave extensive reasons for its decision to award joint custody and to designate Ms. Wall as the domiciliary parent. The trial court noted that less than one month after Ms. Wall was designated as the domiciliary parent by temporary order on March 2, 2020, Mr. Galiano began making unilateral decisions. The trial court noted that this was indicative of Mr. Galiano's personality, as evidenced by his actions in this litigation and his interactions with Ms. Wall. The trial court stated its concern regarding Mr. Galiano deciding to enroll G.P.G. in Sacred Heart Academy in New Orleans when G.P.G. was already established at St. Michael's in St. Tammany Parish, without consulting Ms. Wall. The trial court noted that the record was replete with instances of Mr. Galiano refusing to comply with court orders. The trial court stated that in the year prior to trial, Mr. Galiano often made unilateral medical decisions regarding G.P.G. without consulting Ms. Wall, and he was unwilling to facilitate Ms. Wall's remote participation in those medical appointments. The trial court noted that when Ms. Wall was an inpatient for substance abuse treatment, Mr. Galiano stepped up and took over, but unfortunately, he “acted as if he was the only parent from that point forward and refused to even try to include [Ms. Wall] in decision making.” The trial court found that Mr. Galiano's refusal to involve Ms. Wall in decision making and important financial issues related to G.P.G.’s health and education and failing to facilitate Ms. Wall's participation in the child's medical care and needs was “obstructive and alienating.”

The trial court concluded that, based upon the totality of the evidence, and considering the credibility of the testimony of the parties and the witnesses, joint legal custody was appropriate, and inasmuch as Mr. Galiano “had a pattern of failing and/or outright refusing to communicate with [Ms. Wall],” the trial court designated Ms. Wall as the domiciliary parent. After review, we find no abuse of discretion in that determination.

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, Mr. Galiano argues that it was legal error for the trial court to prohibit him from making routine medical appointments and speaking to institutions that awarded G.P.G. benefits, resulting in a de facto award of sole custody. He maintains that the trial court is prohibited from removing custodial days as a sanction for contempt.

The testimony and evidence established that Mr. Galiano usurped Ms. Wall's domiciliary parent status by moving G.P.G. from preschool in St. Tammany Parish to a school in New Orleans, making medical appointments, obtaining financial grants, and participating in fundraisers for G.P.G. without informing Ms. Wall.

The trial court found that “[Mr. Galiano's] actions with respect to [Ms. Wall], particularly in failing to involve [Ms. Wall] in decision making and important financial issues related to [G.P.G.’s] health and education and failing to facilitate [Ms. Wall's] participating in [G.P.G.’s] medical care/needs, are obstructive and alienating.” After review we find no abuse of discretion in the trial court prohibiting Mr. Galiano from speaking to institutions that awarded G.P.G. benefits.

However, we find that the trial court abused its discretion in prohibiting Mr. Galiano from making non-emergency medical appointments for G.P.G. and from cancelling or rescheduling medical appointments, as this compromises Mr. Galiano's ability to timely seek medical treatment and attention when G.P.G. is in his physical custody. Accordingly, we reverse that portion of the trial court judgment.

The punishment that a court may impose upon a person adjudged guilty of contempt of court is provided in La. R.S. 13:4611. See La. C.C.P. art. 227. Louisiana Revised Statutes 13:4611(l)(d)(i) provides that a trial court may punish a person adjudged guilty of contempt for failure to obey a court's order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both. In addition to those penalties, when a parent has violated a visitation order, the trial court may also order the payment of all court costs and attorneys fees incurred by the other party. La. R.S. 13:4611(1)(e)(iv); Jenkins v. Jenkins, 2023-0087 (La. App. 1 Cir. 6/2/23), 370 So.3d 61, 68. However, the forfeiture of scheduled visitation as a sanction is not provided for in La. R.S. 13:4611.

Thus, we find that the trial court abused its discretion in ordering an automatic forfeiture of Mr. Galiano's assigned custodial visitation days in the event he fails to notify Ms. Wall within fifteen minutes of an emergency situation where the child is being provided medical treatment, as this presupposes a finding of contempt in the absence of an adjudication of same as required by La. R.S. 13:4611(1). (The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court. La. R.S. 13:4611(1) (emphasis added)). Furthermore, this is beyond the sanctions permissible by law; accordingly, we reverse that portion of the trial court judgment.

ASSIGNMENT OF ERROR NUMBER FOUR

In assignment of error number four, Mr. Galiano argues that it was legal error for the trial court to find him in contempt of a court order, as an August 9, 2021 trial court judgment addressed the issue and the issue was res judicata. Additionally, he maintains no evidence or testimony was provided to support the judgment. The trial judge is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order. The court's decision should be reversed only when the appellate court discerns an abuse of that discretion. Dillon v. Dillon, 2021-0463 (La. App. 1 Cir. 12/22/21), 2021 WL 6066841, *3 (unpublished).

At trial, Ms. Wall testified that Mr. Galiano made an appointment with Dr. Giefer, a gastroenterologist, for G.P.G. without notifying her. After the trial on the merits, Mr. Galiano was found in contempt for scheduling the appointment for G.P.G. with Dr. Giefer without notifying Ms. Wall or including her in the appointment, when he was not the domiciliary parent. Mr. Galiano was ordered to pay $250.00 in attorney fees and $100.00 in court costs.

We find that this incident was not addressed in the previous contempt order, and thus the issue was not res judicata. We find no abuse of discretion by the trial court finding Mr. Galiano in contempt. See Dillon, 2021 WL 6066841, *3. This assignment of error has no merit.

CONCLUSION

For the foregoing reasons, the May 10, 2024 trial court judgment is affirmed in part and reversed in part. Costs of the appeal are assessed one-half against the appellant, Dominick Galiano, III, and one-half against the appellee, Alaina Wall.

AFFIRMED IN PART; REVERSED IN PART.

FOOTNOTES

1.   Louisiana Revised Statutes 46:236.5(C) provides that an expedited process may be implemented for the establishment of paternity and the establishment and enforcement of support and other related family and domestic matters in district courts using hearing officers. Under La. R.S. 46:236.5(C)(3)(a), the hearing officer shall act as a finder of fact and shall make written recommendations to the court concerning any domestic and family matters as set forth by local court rule, including the modification of child custody and visitation. Yepez v. Yepez, 2021-0477 (La. App. 1 Cir. 12/22/21), 340 So.3d 36, 39-40.

GREENE, J.