KYLE DURAND v. KANDY ROSE (2023)

In this domestic matter, the court of appeal not only substituted its judgment for that of the trial court, but went further in deciding the issue of custody, which was not before it. In addition, the court of appeal improperly relied on the Family Violence Act, which likewise was not before the trial court (as admitted by the trial court judge). Louisiana Code of Civil Procedure Article 2164 does not come into play because it only applies to matters based “upon the record on appeal.” It is noteworthy that only the father appealed, and not the mother. The court of appeal cannot sua sponte consider an issue not litigated in the trial court, and that is exactly what it impermissibly did.

I would reverse the court of appeal and reinstated the trial court's judgment.

Genovese, J., would grant and assigns the following reasons.