Background
Kayla Josephine Aucoin and John Michael Weaver, who never married, are the parents of a child born June 14, 2018. After a June 20, 2019 trial, the 22nd Judicial District Court (Judge Dawn Amacker) signed an October 3, 2019 “Considered Judgment” awarding joint custody, naming Aucoin domiciliary parent, and giving Weaver limited physical custody. In Aucoin I (2020), the First Circuit found the roughly 82/18 custody split an abuse of discretion and remanded for a schedule giving Weaver more frequent contact. On remand, the parties entered an October 28, 2021 Consent Judgment setting a new physical custody schedule while leaving the Considered Judgment’s other provisions in effect.
On July 3, 2025, Weaver moved to modify custody and child support, seeking joint shared custody, designation as domiciliary parent, and a new holiday schedule. He alleged, among other things, that after his October 2023 retirement the child spent most of her time with him, that the parties used a 2/2/3 summer schedule, and that Aucoin reverted to the written schedule in March 2024. Aucoin answered and reconvened for contempt. After a hearing officer conference produced temporary orders both parties opposed, Aucoin filed a peremptory exception of no cause of action on November 21, 2025, arguing the heightened Bergeron standard for modifying considered decrees applied and Weaver had not pleaded it.
The district court sustained the exception by judgment signed March 12, 2026, reasoning that Bergeron governs any modification of legal custody, “to include a modification resulting in a 50/50 equal and shared custodial allocation,” while lesser physical-custody changes would be governed by the Evans standard. Weaver appealed.
The Court’s Holding
Writing for the panel, Judge Stromberg first addressed jurisdiction sua sponte. Because the judgment sustained the exception without specifically dismissing Weaver’s custody motion—and because his child-support modification remained pending—the judgment was interlocutory, not final, particularly under La. C.C.P. art. 1915(C) as amended by La. Acts 2025, No. 250. The court exercised its discretion to convert the timely filed appeal into an application for supervisory writs, granted the writ, and reviewed the exception ruling de novo.
On the merits, the court held that Louisiana Civil Code article 138, enacted by La. Acts 2026, No. 93 effective August 1, 2026, governs. Although not in effect when the district court ruled, the article codifies the Bergeron and Evans burdens of proof, and a statute changing a burden of proof is procedural and applies retroactively unless it disturbs vested rights. The court’s pivotal passage states: “In this case, because five years have elapsed from the October 3, 2019 Considered Judgment, whether we consider the modification of the Considered Judgment or the modification of the Consent Judgment, La. C. C. art. 138( B) provides that the custody award may be modified upon a change in circumstances that materially affects the welfare of the child if the modification is in the best interest of the child.” Applying the lesser burden did not disturb vested rights because the best interest of the child remains the ultimate consideration under both regimes.
Accepting Weaver’s well-pleaded allegations as true—including the child’s majority time with him after his retirement, the summer schedules, the child’s requests to live with him, and school-performance claims—the court concluded he alleged sufficient facts to state a cause of action for modification under article 138. The district court therefore erred in sustaining the exception.
Key Takeaways
- A judgment sustaining an exception of no cause of action without dismissing the underlying motion—and with a related support claim pending—is interlocutory; the First Circuit will convert a timely appeal to a supervisory writ application where reversal would advance the litigation.
- La. C.C. art. 138 (effective Aug. 1, 2026) codifies Bergeron/Evans but imposes only the lesser material-change-plus-best-interest burden once five years have elapsed from a considered decree.
- Because burden-of-proof statutes are procedural, article 138 applies retroactively on appeal even to judgments correctly decided under prior law, so long as no vested right is disturbed.
- The ruling is claim-specific: it holds only that Weaver pleaded a cause of action; the merits of modification, the domiciliary-parent dispute, and the pending support and contempt matters return to the district court.
Why It Matters
The decision is among the first appellate applications of Louisiana’s 2026 custody-modification statute, confirming that the five-year mark from a considered decree triggers the lighter Evans-type burden regardless of whether the operative schedule rests on a later consent judgment. It also signals that the First Circuit will treat article 138 as procedural and retroactive, meaning trial courts must apply the new framework to pending modification disputes even when they ruled correctly under Bergeron.
Practitioners should note the jurisdictional lesson as well: under the 2025 amendments to articles 927 and 1915, partial dispositions via no-cause-of-action exceptions are interlocutory, and parties should frame challenges as supervisory writ applications—or expect conversion—rather than relying on final-judgment designations, which trial courts can no longer confer under former article 1915 practice.