NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CU 0528

ASHLEY LAMANA

VERSUS

DONALD LAMANA

Judgment Rendered: FEB 0 7 2020

Appealed from the Twentieth Judicial District Court In and for the Parish of West Feliciana State of Louisiana Suit Number 22807

Honorable William G. Carmichael, Presiding

Heather Crabtree Counsel for Defendant/Appellant Cy J. D' Aquila, Jr. Donald Lamana New Roads, LA

and

Haley Major Green St. Francisville, LA

Charles E. Griffin, II Counsel for Plaintiff/Appellee Andrew J. D' Aquilla Ashley Lamana St. Francisville, LA

BEFORE: WHIPPLE, GUIDRY, McCLENDON, WELCH, AND CRAIN, I JJ.

Justice Will Crain is serving as judge ad hoc by special appointment of the Louisiana Supreme Court. _ GUIDRY, J.

Donald Lamana appeals from a trial court judgment modifying the parties'

joint custody arrangement, thereby reducing Donald's physical custody of the

parties' minor child, and modifying Donald's child support obligation. For the

reasons that follow, we dismiss the appeal.

Donald and Ashley Lamana were married on November 10, 2012, and the

couple had one child born on January 9, 2014. Thereafter, on November 14, 2016,

Ashley filed a Petition for 102 Divorce and Incidental Matters, requesting that the

parties be granted joint custody of their minor child and that she be named

domiciliary parent. Ashley alleged that Donald worked shift work and was unable

to care for a two-year-old child in any consistent and structured manner, that he was

known to keep the minor child up all hours of the night when he was working the

night shift, and that he makes poor decisions.

Donald and Ashley subsequently entered into a stipulated judgment, which

was signed by the trial court on April 7, 201 7, ordering that the parties shall exercise

joint custody of the minor child, with Ashley being named the domiciliary parent.

The judgment ordered that Donald shall exercise visitation with the minor child

beginning at 2:00 p.m. on the Friday of his " work out" day through the following

Monday before his night shift at 4:30 p.m. The following Wednesday after his off

weekend, his visitation shall begin at 2:00 p.m. and end Friday at 4:30 p.m. before

his night shift begins. The following Monday visitation shall resume at 2:00 p.m.

until Wednesday at 4 :3 0 p.m. prior to his night shift. The visitation shall then resume

beginning Friday at 2:00 p.m. The judgment further set forth holiday visitation and

ordered Donald to pay $400 per month in child support and $100 in interim spousal

support.

On June 8, 2018, Ashley filed a Rule for Final Divorce, wherein she also

sought modification of the 2017 stipulated judgment. Ashley requested that the

minor child remain at her home on weekdays during school to provide structure and

consistency. Ashley asserted that a change in circumstances had occurred since the

parties' separation, i.e., the minor child was now school age and would be attending

elementary school in the fall. Ashley asserted that she believed the night shift

worked by Donald kept the child up at night during his visitation because he is

attempting to keep his night shift schedule and did not provide the child with the

structure she needs to excel in school. Ashley also alleged that Donald failed to

communicate with her, almost causing the child to miss her Head Start graduation.

Ashley further stated that she believed the child should be delivered by the school

bus to one residence every day to provide a routine for the bus driver and the child

and to prevent accidental delivery of the child to a location with no supervision.

Ashley further asserted that Donald did not have a separate bedroom for the minor

child, did not provide decent clothing for the child nor dress her appropriately,

allowed the child to swim in a lake without flotation devices, and had spanked the

child with a belt.

Thereafter, Donald filed a Motion and Rule to Show Cause for Modification

of Stipulated Judgment, to Terminate Interim Spousal Support, and Rule to Show

Cause for Contempt. Donald alleged it was in the best interest ofthe minor child to

modify visitation to reflect that the party beginning his or her custodial period is to

retrieve the child, as this had been the practice ofthe parties. Donald also asked for

modification of the custodial agreement to accommodate the school year.

Particularly, because the minor child was entering pre-Kindergarten and would be

taking the bus to and from school, Donald requested a provision specifying that the

minor child be allowed to board and disembark the school bus at the house of the

party who is exercising their custodial period, given that the parties live on the same

street. Donald also requested that the interim spousal support of $ 100.00 per month

be terminated upon the rendering of the final judgment of divorce. Finally, Donald

asked the trial court to find Ashley in contempt of court for violating a provision in

the stipulated judgment providing that " neither party shall entertain members ofthe

opposite sex of whom they are not related while the minor child is in their care."

A judgment of divorce was signed on August 8, 2018, and all other matters

were set for hearing on November 7, 2018. On the date set for hearing, upon

agreement of counsel for the parties, the matter was continued to December 5, 2018.

However, on November 8, 2018, Ashley filed a Petition for Protection from Abuse,

alleging that on November 4, 2018, the minor child told her that she bathes and

washes her dad's body parts, including his private parts, when she is with him.

Ashley stated that she had brought the child to Our Lady of the Lake Pediatric

Center, which called the West Feliciana Sheriff's Office and Child Services.

According to Ashley, an investigation had been opened, and she wanted the child to

remain in her custody until the investigation was complete. Additionally, Ashley

asserted that Donald had a party at his house and was drunk while exercising

physical custody ofthe child and that he provided the minor child with beer. Finally,

Ashely asserted that Donald had whipped the child with a belt, leaving red marks

across her chest.

On December 5, 2018, the trial court held a hearing first on the rule for an

order ofprotection and then on the countervailing rules to modify the 201 7 stipulated

judgment. At the conclusion of the hearing, the trial court took both matters under

advisement. The trial court subsequently signed a judgment dismissing the Petition

for an Order of Protection and denying Donald's rule for contempt. The judgment

further ordered that the parties shall continue to exercise joint custody of the minor

child, with Ashley being designated as the primary domiciliary parent. The trial

court ordered that during the school year, Donald shall exercise visitation on his first

week of his two-week rotating schedule from Friday after school until Sunday at

4:00 p.m., and that Donald shall pick the child up from the school bus stop at

Ashley's residence. During the summer, Donald was to exercise visitation during

his first week rotation from Friday at 3 :00 p.m. until Sunday at 4:00 p.m. During

his second week rotation, Donald shall exercise visitation from Wednesday at 4:00

p.m. until Friday at 4:00 p.m. The trial court ordered that the existing holiday

schedule shall remain in effect. Additionally, the trial court ordered that neither

party shall bathe with the minor child, shall give the child access to alcoholic

beverages, or employ corporal punishment. The trial court ordered that interim

spousal support be terminated as of July 1, 2018, and ordered that child support be

fixed at $ 570.00 per month commencing July 1, 2018.

Donald filed an appeal with this court from the portions of the trial court's

judgment modifying child custody and Donald's child support obligation.

However, on January 3, 2020, Donald Lamana filed a motion to dismiss his appeal,

asserting that the case has been settled by a stipulated judgment ofthe parties, which

was signed by the trial court on December 26, 2019. Accordingly, because the

underlying dispute has been resolved, we hereby grant Donald Lamana's motion and

dismiss his appeal, with all costs assessed to him.

APPEAL DISMISSED.