STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT N0. 2023 CU 0089 

# VU I 

# q4g'"' CHRISTOPHER McWHORTER VERSUS KASSIE GILL

Judgment Rendered:

Appealed from the 17th Judicial District Court Parish of Lafourche, State of Louisiana

No. C- 145424 NOV 2 7 2023

The Honorable KirkA.Vaughn,Judge Pro Tempore Presiding

Timothy Thriffiley Belle Chasse, Louisiana

Joan M. Malbrough Estelle E. Mahoney Cheleste H. Gottschalk Houma, Louisiana 

### Attorney for Defendant/Appellant, Kassie Gill

Attorneys for Plaintiff/ Appellee, Christopher McWhorter

BEFORE: GUIDRY, C.J., McCLENDON, CHUTZ,

PENZATO, AND WOLFE, JJ.

repWOLFE, J.

In this custody suit, the mother appeals a trial courtjudgment awarding the fathershared custody ofthe minorchild. Forthe reasonsthatfollow,we reverse and remand for further proceedings. FACTS Christopher McWhorter and Kassie Gill are the unmarried parents of SJM, born January 14, 2022. On August 15, 2022, Mr. McWhorter filed the instant suit in Lafourche Parish to establish filiation, custody, and child support of the minor
child. 

### In his petition, Mr. McWhorter alleged that he formally acknowledged the child and was listed as the father on the child' s birth certificate, and further that he 

### had exercised visitation with the child since his relationship with Ms. Gill ended in March. Mr. McWhorter requestedjointcustody ofthe child or,alternatively, shared 

### custody exercised on an alternating fourteen - day basis to accommodate his work

schedule. He asked that child support be set in accordance with Louisiana' s child support guidelines, with Ms. Gill ordered to pay her proportionate share of the 

### child's expenses, and that he be allowed to claim the tax dependency exemption for the child. 

### A hearing on Mr.McWhorter's petition was set for September 28, 2022. The 

### hearing was first continued on motion ofMs. Gill,who represented that she lived in Plaquemines Parish and needed more time to prepare and retain counsel to represent her in Lafourche Parish. She additionally claimed that she was obligated to work in 

### Monroe, Louisiana, during the week ofthe scheduled hearing. She indicated that
she contacted "the opposing party/counsel" but did not indicate whether there was any objection to the requested continuance. The trial court granted the motion, and the hearing was re -

set for October 25, 2022. The October 25, 

### 2022 hearing was then continued on motion of Mr. McWhorter, who represented that he would be out of state for work on the date of 2

### the scheduled hearing. He indicated that Ms. Gill had been contacted and had no



### objectiontothe continuance. The trial court granted the motion andthe hearing was re - set for November 29, 2022. 

### On the afternoon beforethe November29, 2022 hearing,an attorney fax - filed a motion to enroll on behalf of Ms. Gill for the limited purpose of requesting a continuance and stay of the proceedings pending the outcome of a petition for protection from abuse that Ms. Gill filed in Plaquemines Parish. In the 

### accompanying motion for continuance and stay, it was explained that a hearing on the petition for protection from abuse was scheduled for November 21, 2022, but continued to December 12, 2022, due to lack ofservice. Attached as an exhibit was 

### acopyofthe petition forprotection from abuse filedbyMs. Gill,on behalfofherself and SJM, against Mr. McWhorter in Plaquemines Parish. Therein, Ms. Gill alleged 

### abuse by Mr.McWhorter,includingthe failureto returnthe minorchild atthe agreed upon time and place, harassment, and threatening her and her unborn child with 

### bodily harm. As supporting evidence, Ms. Gill appended atypewritten list ofdates and alleged threats made by Mr. McWhorter. In the petition, Ms. Gill requested 

### issuance ofatemporary restraining orderandan award oftemporary custodyofSJM; however, the attachment did not include any orders issued in connection with the petition. On November 29, 2022, Mr. McWhorter and his attorney appeared in court for the scheduled hearing. Neither Ms. Gill nor the attorney who fax - filed the motions to enroll and for continuance were present. When the case was called, Mr. 

### McWhorter's attorney explained that the previous day she received a fax from an attorney seeking a continuance ofthe hearing. 

### Mr. McWhorter's attorney voiced herobjection to the request, statingthatthe petition in this matter had been pending since August 15, that Mr. McWhorter had not been allowed any visitation with the 

### child inthe preceding month, andthat she was ready to proceed. 3The trial court acknowledged receiving "

### a phone call from the attorney who



### didn'teven botherto cometoday — claiming that she wanted a continuance and that the lady, her client, was pregnant and was having some sort of transfusion or something [like] that." The trial court explained that the attorney was instructed to contact Mr. McWhorter' s attorney. Recognizing that Mr. McWhorter' s attorney 

### obviously did not agree to a continuance, the trial court stated it was ready to proceed. The trial court observed, "

### they had to know these things were going on withoutcontacting anyone until [the] lastminute," which the trial court characterized
as " inappropriate." Mr.McWhorterthen testified on his own behalf. He explained that he worked 

### as an offshoretugboatcaptain and arranged his scheduleto have custody ofthe child on an alternating fourteen - day schedule. According to Mr.McWhorter, he and Ms. 

### Gill had shared custody ofthe child according to that schedule until Ms. Gill made unfounded allegations against him and filed for a protective order, after which he had not been allowed to see the child. Mr. McWhorter noted that Ms. Gill alleged 

### instances of abuse during months he had custody ofthe child, but did not seek a protective order until November. Mr. McWhorter testified that he was the child' s 

### primary caregiver, explaining that when Ms. Gill traveled to Monroe to work as a nurse practitioner, she left the child with him or babysitters, some ofwhom were as young as sixteen years old. Mr. McWhorter confirmed that Ms. Gill was again pregnant and that he might be the unborn child' s father. 

### During histestimony, Mr.McWhorter acknowledgedthat an orderwas issued in relation to the petition forprotection from abuse that Ms. Gill filed in Plaquemines Parish. However, Mr. McWhorter affirmed that the Plaquemines Parish court was 

### aware ofthe custody proceeding, as evidenced by the order stating that itwould be 

### superseded by any order rendered by a court in Lafourche Parish withjurisdiction over custody ofthe child. 4

### At the conclusion ofMr. McWhorter' s testimony,the trial court stated it had

a lot of questions, a lot of concerns" that it did not expect to have answered that day, noting "[ i]t would' ve been nice to have both parties here." In response to 

### questioning bythe trial court, Mr.McWhorter indicated that DNAtesting proved he 

### was SJM's fatherand ifhewasprovento bethe unborn baby's father, hewas willing to raise it too. Mr. McWhorter denied any substance abuse problems and, when the trial court asked ifhe had "[ a]nytype ofcriminal record," he answered "[ n] ot really." 

### After a colloquy with Mr. McWhorter about how custody of the child could be 

### transferred between the parents without Mr.McWhorter being arrested forviolating the protective order issued in Plaquemines Parish, the trial court granted Mr. McWhorter' s request for shared custody. The trial court explained that it based its 

### ruling on Mr. McWhorter having cared for the child " so much in the past" and the 

### fact that it saw no prohibitions to a shared custody arrangement, noting that shared custody ispresumedto be inthe best interestofthe child unless apartycan overcome that presumption. The trial court cautioned Mr. McWhorter to " be careful," telling him, "you' re the one that' s important in this process, not me." After Mr. McWhorter 

### thanked the trial court for its ruling and advice,the trial court further explained that it knew how it would rule before questioning Mr.McWhorter, but wanted to make sure it "heard the right answers." 

### When Mr.McWhorter described bonding with the father of two of Ms. Gill' s other children, having earlier described the custody dispute between Ms. Gill and the children' s father, the trial court commented that shared abuse sometimes creates close friendships." At the conclusion of the 

### hearing,the trial courtthanked Mr.McWhorterfor "stepping up and caring for [his] daughter," 

### noting thatthere were too many absentee fathers. 

### In conformity with its oral ruling, the trial court signed a judgment on December 1, 2022, that awarded Ms. Gill and Mr. McWhorter shared custody of 

### SJM on an alternating fourteen - day schedule. The judgment decreed that the

5

### custody schedule would begin immediately, with Mr.McWhorter having custody of

the child until December 8, 2022, when his work schedule changed, and Ms. Gill 

### having the child December 8, 2022, through December 22, 2022, then Mr. 

### McWhorter having custody December 22, 2022, through January 5, 2023, and 

### custody thereafter alternating every fourteen days. The judgment specifically provided that it superseded the Plaquemines Parish protective order. 

### The day afterthejudgmentwas signed,the same attorney who filed the prior motion to enroll on behalf of Ms. Gill filed a second motion to enroll as counsel for 

### Ms. Gill forthe limited purpose offiling an accompanying motion to continue and staythe proceedings pending the outcome ofthe Petition for Protection pending in Plaquemines Parish. The trial court denied the motions as moot. Ms. Gill then filed a motion for new trial, in which she stated that when she requested acontinuance and stay ofthese proceedings, she believed Mr.McWhorter 

### was offshore and unable to move forward with the hearing. She stated that she 

### understood that the motion for continuance and stay filed by the attorney on her behalf were not considered due to untimely payment of filing fees. Ms. Gill represented that she was 34 weeks pregnant with Mr. McWhorter' s child and, on the 

### date ofthe custody hearing, received a blood transfusion and was put on bed rest, which rendered it "medically impossible" forherto appearatthe hearing and puton
evidence. 

### She further asserted that the trial court's judgment awarding shared custody was contrary to the law and evidence, alleging instances ofabuse by Mr. McWhorterthat formed the basis ofthe protective ordershe obtained in Plaquemines 

### Parish. Thetrial court deniedthe motion without a hearing, noting that "[ t]he Judge in Plaquemines provided forthe contingency ofacustody ruling in Lafourche Parish 

### regarding custody. Moverchose nottoappearherein despite acontinuance notbeing granted."Ms. Gill now appeals the trial court' s December 1, 

### 2022 custodyjudgment

and the denial ofher motion for new trial. DISCUSSION Ms. Gill contends that the trial court should have granted her a continuance of 

### the custody hearing as it had information that she was unable to attend because she was undergoing a medical procedure related to 

### her pregnancy. Ms. Gill 

### acknowledges thatthe information regarding hermedical condition was not setforth in the motion forcontinuance and stay ofthe proceedings, but contends thatthe trial 

### courtwas aware ofit,asevidenced bythetrial court's comments regardingthe phone call it received from the attorney who prepared the motion. Additionally, she attached evidence of such to her motion for new trial, which she contends should 

### have been granted on that basis and because she had evidence ofdomestic abuse by Mr. McWhorter. 

### The trial court may grant a continuance on peremptory or discretionary grounds. La. Code Civ. P. arts. 1601 and 1602. There are only two peremptory grounds: ( 1) 

### the party seeking the continuance, despite due diligence, has been unable to obtain material evidence; or (2) a material witness is absent without the 

### contrivance ofthe party applying for the continuance. La. Code Civ. P. art. 1602. 

### Absent peremptory grounds, a continuance rests within the sound discretion ofthe trial court. Matter of Succession of Patin, 2021- 1461 ( 

### La.App. 1st Cir. 1114122), 355 So.3d 45, 48, writ denied, 2023- 00011 ( La. 3128123), 358 So.3d 513. La. Code Civ. P. art. 1601 provides for a continuance " ifthere is good ground therefor." The 

### trial courtmustconsiderthe particularfacts ofacasewhen deciding whetherto grant ordeny a continuance. The trial court should consider the diligence and good faith ofthe party seeking the continuance and other reasonable grounds. The trial court 

### may also weigh the condition ofthe court docket, fairness to the parties and other litigants before the court, and the need for orderly and prompt administration of 7justice. The trial court has great discretion in granting or denying a continuance

under La.Code Civ. P. art. 1601, and its ruling should not be disturbed on appeal in the absence ofa clear abuse ofdiscretion. Matter of Succession of Patin, 355 So.3d



### A newtrial shall be granted upon contradictory motion ofany partywhen the 

### judgmentappears clearlycontraryto the lawandthe evidence,orwhenthe partyhas 

### discovered newevidencethatshe could not have obtained before orduring trial. See La. Code Civ. P. art. 1972. Additionally, a new trial may be granted in any case if there are good grounds therefor. See La. Code Civ. P. art. 1973. A new trial should be ordered when the trial court, 

### exercising its discretion, 

### is convinced by its examination of the facts that the judgment would result in a miscarriage ofjustice. The denial of a motion for new trial, whether on peremptory or discretionary grounds, should not be reversed unless there has been an abuse ofthe trial court' s discretion. 

### Moore v. Prater,2021- 1430 (La.App. 1st Cir. 613122), 342 So.3d 994, 1.002-03. We recognize that a trial court has wide discretion in the control ofits docket. 

### Rover Group, Inc.v. Clark,2021- 1365 (La.App. 1st Cir.4/8/22), 341 So.3d 842, 846, writ denied, 2022-00766 ( La. 9/20/22), 346 So.3d 287. However, the 

### paramountconsideration in all child custodydisputes isthe best interest ofthe child. See La. Civ. Code art. 131; Evans v. Lungrin, 97-0541 ( La. 216198), 708 So.2d 731, 

### 740. Thetrial court sits as asortoffiduciary on behalfofthe child and mustactively pursue that course ofconduct that will be ofthe greatest benefit to the child. Turner
v. Turner, 455 So.2d 1374, 1379 ( La. 1984). 

### Every child custody case must be viewed in light of its own particular set offacts and circumstances. Underwood v. Underwood, 2021- 0277 (La.App. 1st Cir. 10/21/21), 332 So.3d 128, 139. The record in this case establishes that Ms. Gill has made allegations ofabuse against Mr. McWhorter in another court, which raise questions as to whether an N.

### award ofshared custody is in SJM' s best interest.' By proceeding with the custody

hearing in Ms. Gill' s absence, 

### the trial court was denied the opportunity to adequately considerthe truth ofthose allegations and assess the best interest ofthe
child. 

### In fact, the trial court alluded to this when, after hearing Mr. McWhorter's testimony, it stated it would have been nice to have both parties present as it had many unanswered questions. 

### Ms. Gill has explained that her absence from the custody hearing was dueto complications with her advanced pregnancy. Although the motion to continue 

### presented to the trial court was not based on the pregnancy or the related complications, the trial court acknowledged that it had been informed that Ms. Gill 

### was receiving atransfusion. Further, Mr.McWhortertestified that he was likelythe unborn child' s father and expressed his concern over Ms. Gill obtaining proper 

### medical care during the pregnancy. 

### Considering the unique circumstances presented in this matter, we find that 

### the trial court abused its discretion in proceeding with the custody hearing in Ms. Gill's absence and rendering ajudgment awarding shared custody ofthe child. At 

### the very least, a newtrial is warranted sothat all relevant evidence can be presented and the trial court can make an informed decision regarding SJM's best interest. CONCLUSION 

### The trial court's judgment denying Kassie Gill's motion for new trial is reversed and this matter is remanded for a new trial. Costs ofthis appeal are assessed to Christopher McWhorter. REVERSED AND REMANDED.

I These allegations appear in the petition for protection from abuse that was filed with her motion to continue. As Mr. McWhorter points out on appeal, Ms, Gill did not answer his petition or file any substantive pleadings in this matterthat directlyallege abuse. ECHRISTOPHER McWHORTER

VERSUS
CASSIE GILL FIRST CIRCUIT COURT OF APPEAL STATE OF LOUISIANA NO. 2023 CU 0089
1161 CHUTZ, J.,

### dissenting. 

# r I disagree with the majority's conclusion that the trial court abused its discretion either in denying Ms. Gill' s motion for continuance or her motion for new trial. Ms. Gill alleges it was " 

### medically impossible" for her to appear at the custody 

### hearing because she was scheduled to undergo atransfusion related to her pregnancy 

### on the date ofthe hearing. In her motion to continue, however, Ms. Gill made no
mention of a scheduled medical procedure. Instead, she requested a continuance 

### solely on the basis that no ruling had been made in her pending action for a protective order against Mr. McWhorter in Plaquemines Parish. As the trial court observed, it was not until the " last minute" 

### that Ms. Gill's attorney contacted the trial court by phone and advised that Ms. Gill wanted a continuance because she was 

### undergoing a medical procedure on the date ofthe custody hearing. Even if the medical necessity of the procedure is conceded, the record is 

### devoid of any evidence showing the procedure was necessitated by a medical emergency that prevented Ms. Gill from timely requesting a continuance on medical grounds. Although it is clear the procedure was scheduled in advance, the record does not establish whether the procedure was scheduled before or after the date of the custody hearing was set. 

### Ms. Gill also failed to present any evidence that she 

### lacked control over the scheduling of the procedure or that she could not have undergone the procedure on a different day without riskto her health orthe health of 

### the baby.

### Absent peremptory causes, which have not been established in this case, a

continuance rests within the trial court' s sound discretion. 

### The trial court's ruling on whether or not to grant a continuance should not be disturbed in the absence of a clear abuse of discretion. 

### Appellate courts interfere in such matters only with reluctance and in extreme cases. Booth v. Amberg, 07-2560 ( La. App. 1st Cir. 9119108), 2008 WL 4287562, * 4 ( unpublished). 

### In this case, Ms. Gill presented absolutely no evidence showing her failure to appear was due to circumstances beyond her control or contrivance. Thus, I do not 

### believe the trial courtabused its discretion in proceeding with the custody hearing in Ms. Gill' s absence. In her motion for new trial, Ms. Gill argued a continuance should have been granted in view of her medical condition, which would have 

### allowed her an opportunity to present evidence supporting her allegations of abuse 

### by Mr. McWhorter. However, 

### having concluded the trial court did not err in refusing to continue the custody hearing, I likewise do not believe the trial court 

### erred in denying Ms. Gill's motion for new trial, which was based largely on the denial ofthe requested continuance. 

### Accordingly, I respectfully dissent.

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