Judgment rendered May 25, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,611-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
AMANDA BRASHER Plaintiff-Appellee LANGSTON
versus
GARY LANGSTON, II Defendant-Appellant
Appealed from the Fifth Judicial District Court for the Parish of West Carroll, Louisiana Trial Court No. 30,960
Honorable Will Barham, Judge
CUMMINS & FITTS, LLC Counsel for Appellant By: Daniel C. Cummins Jessica L. Fitts
THE LOWERY LAW FIRM Counsel for Appellee By: Scotty Wayne Lowery
Before COX, THOMPSON, and ROBINSON, JJ. THOMPSON, J.
Without prior court authority, a mother relocated out-of-state with her
new husband and her minor children from a previous marriage, who were
subject to a custody order. The father asserted he did not consent to the
relocation of the children and filed an opposition. After consideration by a
hearing officer and then a trial, the trial court granted the relocation request
of the mother but assessed her with $12,000 in expenses for failure to obtain
prior authorization from the court to relocate. The father appeals the
granting of the relocation. Finding that the trial court did not abuse its great
discretion and for the reasons set forth below, we affirm the judgment of the
trial court and leave undisturbed the award of expenses in favor of the father.
FACTS
Amanda Langston Strong (“Amanda”) and Gary Stephen Langston II
(“Stephen”) were married in 2007, and during their marriage, they had two
children, a son born in 2008 and another son born in 2012. On May 1, 2017,
Amanda filed a petition for divorce, alleging physical abuse by Stephen.
She obtained a protective order against Stephen for herself and the two
children. On August 4, 2017, the parties attended a hearing officer
conference, which resulted in the hearing officer recommending that
Amanda be granted domiciliary custody of the children. Stephen was
ordered to pay $1,047 per month in child support. On August 7, 2017, a
second protective order was granted in favor of Amanda and the children.
The protective order stayed in place until a hearing on January 8,
2018. During this time period, Stephen had not been paying child support
and allegedly told Amanda that he would lose his job and be unable to pay support if the protective order stayed in place. Stephen was an emergency
room nurse, and Amanda was a dental hygienist. Amanda agreed to reduce
the protective order to a stay away order, which would be issued in the
divorce proceeding. The parties were eventually divorced on November 5,
2018. The custody order appointed Amanda as domiciliary parent, and
Stephen would have custody of the children every other weekend, with 6
weeks’ visitation during the summer.
In 2018, Stephen moved to Texas, where he worked part-time at a
feed store while going to school full-time for graphic art design. During this
time period, he did not pay child support. He allegedly lived with his sister,
girlfriends, or in hotels while in Texas. He saw the children approximately
ten times during the year, and copies of text messages reveal that he
frequently asked to see the children and speak to them. Stephen moved back
to Louisiana in the fall of 2019 and returned to work as a nurse. Child
Enforcement Services began garnishing Stephen’s pay for child support once
he returned to Louisiana and started working.
In January of 2020, Amanda claims that she told Stephen that she and
her new husband, Ryan Strong (“Strong”), were going to be moving for
Strong’s job. Amanda testified that Strong’s company wanted to move him
to Colorado but that they believed it was too far away. Instead, Strong took
a new job that was located in Waco, Texas, so that they could be closer to
family. Amanda and Stephen disagree about whether Stephen gave his
consent to the move at that time. Amanda argues that Stephen agreed it
would be better for the boys to be in the Texas school system and stated that
he might move to Texas to be closer to the boys. The record reflects an
2 affidavit from Amanda’s friend, who attested that Stephen told her that he
would move to Texas, to be closer to the boys. Stephen argues that he did
not know that Amanda was moving to Waco, Texas with the boys until he
texted her about his visitation weekend in late May 2020, and she told him
that they were in the process of moving. He argues that he never consented
to her relocation with the children.
On June 24, 2020, Stephen filed a petition for injunctive relief in the
parties’ divorce and custody proceeding, asking the court to issue an
immediate temporary restraining order and, in due course, a preliminary
injunction prohibiting Amanda from relocating with the children. The trial
court issued a temporary restraining order, which prohibited Amanda from
removing the children from Louisiana. On July 7, 2020, Amanda forwarded
a relocation notice via certified mail to Stephen, and on July 15, 2020, she
filed an answer and reconventional demand to his petition for injunctive
relief, which requested that the temporary restraining order be rescinded.
The trial court thereafter vacated the temporary restraining order.
On September 4, 2020, the parties appeared at the court-mandated
hearing officer’s conference, where the hearing officer took up the issues of
custody and relocation. The hearing officer recommendation states the facts
in the present case, including Amanda’s reasons for leaving the area and the
problematic nature of Stephen’s schedule, and cites Louisiana statutes
related to relocation and notice thereto. The hearing officer recommended
that the modification and request to relocate the children be granted. He
then provided an amended joint custody implementation plan. Stephen
objected to the hearing officer’s recommendation.
3 On March 26, 2021, the trial court heard arguments regarding whether
the relocation was properly considered and before the hearing officer, as
Stephen argued that Amanda had not properly requested to relocate with the
children. The trial court held that the issue of relocation was properly before
the court and adopted the recommendation of the hearing officer regarding
relocation and custody. The trial court noted that the hearing officer had
properly considered all of the appropriate factors in relocation.
On April 16, 2020, the trial court heard the matter of the relocation,
and Amanda, Stephen, and Stephen’s fianceé, Hillary Copeland, testified.
Amanda testified that both boys are doing well in school and are active in
their school communities. She testified that her older son was a little
nervous to start a new middle school but had adjusted and done well. She
testified that at the time of her relocation, Stephen was about $24,000 in
arrears in child support, and the home she moved to in Texas is larger and
nicer than her old home in West Monroe, Louisiana. She testified that she
earns more in Texas than in Louisiana and that her husband has an upwardly
mobile job. Amanda testified that she thought it was important that the
children have a relationship with their father and that she had done what she
could to facilitate that, including encouraging the older child to answer his
father’s texts and phone calls and being open to additional custody time for
Stephen. Amanda testified that she believes that her family is too
entrenched in Texas to successfully return to Louisiana at this point. She
testified that the children have friends, are doing well in school, have
activities, and a church. They have a home that she and her husband own
4 together. She testified that she believes the parties must simply make the
best of the situation.
Stephen testified that he was an Army Ranger for almost 10 years and
then became a registered nurse, with a concentration in emergency medicine.
He admitted to at least one domestic violence incident that led to the
dissolution of his marriage. He also admits to having never paid child
support, other than that portion of his wages that are garnished by the state.
He testified that he moved back to Louisiana so that he could see the
children more often. He testified that during the Covid-19 pandemic he had
custody of the children more often because they were not in school. He
worked seven days on, seven days off, and during his off weeks, he would
have the children five or six days a week.
When questioned by the court, Stephen testified that he thought the
children should remain the rest of the year at school in Texas because
pulling them out of school in the middle of the year would be difficult. He
also testified that he did not believe that the children should simply be
removed from their mother’s care and sent to live with him. Stephen
acknowledged that they need their mom but believes that they need equal
time with their dad. Stephen’s fiancée, Hillary Copeland, testified that he
lives with her in the house that she owns. She testified that he is a good
father and has never been violent with her.
The trial court ruled that it would be in the best interests of the
children to be allowed to relocate to Waco, Texas, with their mother. The
trial court also found that Amanda was in violation of the relocation statutes
5 and awarded $12,000 in attorney fees to Stephen in connection with the
relocation matter pursuant to La. R.S. 9:355.6(3). This appeal followed.
DISCUSSION
On appeal, Stephen asserts four assignments of error.
First Assignment of Error: Amanda never requested permission from the court to relocate the children. Thus, a relocation cannot be granted.
Stephen argues that Amanda never requested permission from the
court to relocate and did not provide him with proper notice of her
relocation. Thus, he contends Amanda’s failure to comply with that
procedural requirement caused the trial court to err in allowing her to
relocate with the children.
At a March 26, 2021 hearing, the trial court heard arguments
regarding whether the relocation was properly before the court. The trial
court noted that the issue of relocation had already been argued and heard
before the hearing officer and noted that it was in the best interests of the
children to have the custody and relocation issues heard as quickly as
possible. The court found that the relocation was properly before the court.
Stephen cites La. R.S. 9:355.4 in support of his argument, which sets
forth the notice requirement for the proposed relocation of children as
follows:
A. A person proposing relocation of a child’s principal residence shall notify any person recognized as a parent and any other person awarded custody or visitation under a court decree as required by R.S. 9:355.5.
B. If multiple persons have equal physical custody of a child under a court decree, the person proposing relocation shall notify the other of a proposed relocation of the principal residence of the child as required by R.S. 9:355.5, and before relocation shall obtain either court authorization to relocate,
6 after a contradictory hearing, or the express written consent of the other person.
Although La. R.S. 9:355.4(B) requires that the relocating parent
obtain court authorization prior to relocating the children, the statute does
not mandate that a petition or motion to relocate be filed by the relocating
parent. It simply requires that a contradictory hearing be held. Based upon
the language of the applicable statute, the legislature apparently did not
intend for failure to comply with the requirement to obtain court authority
prior to relocating children to be fatal to a request to relocate.
We find that the relocation was properly before the trial court, having
initially been raised when Stephen properly petitioned the court to bar
Amanda from relocating with the children, to which Amanda thereafter
objected, asking the trial court to terminate Stephen’s visitation. Moreover,
jurisprudence states that “Louisiana’s relocation statutes retain the best
interest of the child standard as the fundamental principle governing
decisions made pursuant to its provisions.” Randazzo v. Prosperie, 13-0704
(La. App. 1 Cir. 9/13/13), 135 So. 3d 22. It is undisputed that the hearing
officer and the trial court heard arguments from both parties regarding the
relocation of the children. It is in the best interests of the children for this
matter to reach a conclusion. Considering the procedural posture of this
matter and the unique order in which the relocation issue was raised, we
cannot say the trial court was manifestly erroneous reaching its conclusions.
We find this assignment of error to be without merit.
Second Assignment of Error: The Fifth Judicial District Court judge did not consider Amanda’s failure to properly provide notice of the proposed relocation to Stephen in its final determination of relocation.
7 Stephen alleges that Amanda notified him of the relocation of the
children via text message during the process of her move to Texas. Stephen
states that Amanda did not send a certified letter notifying him of her
relocation until well after she had already relocated the children. Stephen
argues that this notice was not proper pursuant to La. R.S. 9:355.6 and that
the trial court did not consider the improper notice in its analysis of the
validity of the relocation.
La. R.S. 9:355.6 states:
The court may consider a failure to provide notice of a proposed relocation of a child as:
(1) A factor in making its determination regarding the relocation of a child.
(2) A basis for ordering the return of the child if the relocation has taken place without notice or court authorization.
(3) Sufficient cause to order the person proposing relocation to pay reasonable expenses incurred by the person objecting to the relocation.
(emphasis added).
The record reflects that the trial court considered Amanda’s lack of
proper notice in its analysis of the proposed relocation of the children.
Importantly, the trial court, in response to her untimeliness in requesting
prior court approval, ordered Amanda to pay Stephen’s reasonable expenses
incurred through his objection to the relocation, pursuant to La. R.S.
9:355.6(3). As noted in the first assignment of error, failure to file timely
notice of an intent to relocate is not fatal to such a request in this current
form of the law as set forth by the legislature, but it can, and in this matter
did, result in consequences for the delinquent relocating parent. Therefore,
we find this assignment of error to likewise be without merit.
8 Third Assignment of Error: The lower court gave great weight to the fact that the children were already residing in Waco, Texas temporarily in its granting of the permanent relocation. This was done in violation of 9:355.12(C).
Stephen argues that the trial court gave great weight to the fact that
the children were already residing in Waco, Texas, when making its
determination regarding relocation. La. R.S. 9:355.12(C) states that “if the
court issues a temporary order authorizing relocation, the court shall not give
undue weight to the temporary relocation as a factor in reaching its final
determination.” Stephen cites the following statement made by the trial
court during the hearing on this matter: “Well, the children of course and
you know have been there since May the 28th … I guess the position that I’m
in that I don’t like to be in is it’s already happened and I can’t undo what’s
already been done, I can but I don’t know that anyone would like what that
would look like.” This statement by the trial court was made in the context
of the trial court asking Stephen what he would, ideally, like to happen and
what he believed to be the best interests of the children at that time. The
exact quote from the record is as follows:
COURT: Well, the children of course, and you know have been there since May the 28th. Does that ...
A. You know I objected to her moving out of West - I mean out of Oak Grove but they did that ...
COURT: You did? Well and I guess the position that I’m in that I don’t like to be in is it’s already happened and I can’t undo what's already been done, I can but I don’t know that anyone would like what that would look like so I guess what I’m asking you is what would you like to see happen here today? What do you believe is in the best interest of the children?
The record does not reflect that the trial court placed undue weight on
the temporary relocation of the children to Waco, Texas. The language cited
9 by Stephen was a part of the trial court’s inquiry into what result Stephen
believed would be in the best interests of the children and was not a part of
the trial court’s ruling. Moreover, the record reflects that the trial court did
not base its decision to allow the relocation solely on the fact that the
children currently resided in Texas, as evidenced by the trial court’s
adoption of the hearing officer’s recommendation, which considered all
factors listed in La. R.S. 9:355.14. As such, this assignment of error is
likewise without merit.
Fourth Assignment of Error: The factors the Court is to consider in the relocation of minor children pursuant to La. R.S. 9:355.14 favor the denial of the relocation of the Langston children strongly.
Stephen argues that the 12 factors set forth in La. R.S. 9:355.14 do not
favor the relocation of the children from Louisiana. Stephen contends the
trial court erred in determining that the children should be relocated to Texas
with their mother.
The paramount consideration in any child custody case is the best
interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.
2/6/98), 708 So. 2d 731; Moore v. Moore, 47,947 (La. App. 2 Cir. 3/6/13),
111 So. 3d 1120. A parent seeking to relocate the principal residence of a
minor child has the burden of proving that the proposed relocation is in good
faith and that the proposed relocation is in the best interest of the child. La.
R.S. 9:355.10; Hernandez v. Jenkins, 12-2756 (La. 6/21/13), 122 So. 3d 524;
Wylie v. Wylie, 52,800 (La. App. 2 Cir. 5/22/19), 273 So. 3d 1256. La. R.S.
9:355.14 provides that in reaching its decision regarding a proposed
relocation, the court shall consider all relevant factors in determining
whether relocation is in the best interests of the child, including the 12
10 factors enumerated therein. While La. R.S. 9:355.14 requires consideration
of all 12 factors, the court is not required to give preferential consideration
to any certain factor or factors. Gathen v. Gathen, 10-2312 (La. 5/10/11), 66
So. 3d 1.
In the present matter, the trial court found that it was in the best
interests of the children to allow Amanda to relocate with them. The court
noted that it found that Amanda was technically in violation of the notice
requirement, although it noted that the violation may not have been willful.
The trial court adopted the hearing officer’s report and heard extensive
argument by counsel on the matter. All 12 factors in La. R.S. 9:355.14 and
those set forth in La. C.C. 134 were addressed in a full hearing before the
hearing officer appointed by the trial court.
While a different conclusion very possibly could have reached based
on the facts presented in this matter, the consideration on appeal regarding
the ruling of the trial court is whether it abused its great discretion in
arriving at that conclusion. A trial court’s determination in a relocation
matter is entitled to great weight and will not be overturned on appeal absent
a clear showing of abuse of discretion. Wylie, supra. The trial court is not
required to expressly analyze each statutory relocation factor in its oral or
written reasons for judgment in a relocation case. Moore, supra. A trial
court’s failure to expressly analyze each factor does not constitute an error
of law that would allow de novo review. Gathen, supra; Moore, supra. The
trial court is free to give whatever weight it deems appropriate to each of the
statutory factors in a contested relocation case.
11 The district court has great discretion in child custody cases, and an
award of child custody will be disturbed only on a showing of abuse of that
discretion. Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d
208, writ denied, 20-01003 (La. 9/8/20), 301 So. 3d 30. While it is clear that
both parties in this case love their children and desire a close relationship
with them, we cannot say that it was an abuse of discretion for the trial court
to allow the relocation of the children to Texas with their mother, even if we
would have reached a different conclusion. This assignment of error is
Attorney Fees
Next, we turn our attention to the award to Stephen by the trial court
of $12,000 in attorney fees as part of the “reasonable expenses” that it cast
Amanda for failure to pursue court authority to relocate prior to relocating
the children. In her brief to this court, Amanda argues that the trial court’s
award of attorney fees to Stephen pursuant to La. R.S. 9:355.6(3) was in
error and should be reversed.
As originally drafted, La. R.S. 9:355.6 provided a trial court with the
authority to order the relocating parent to pay both the reasonable expenses
and attorney fees of the objecting parent. However, in 2012, this version of
the language of the statute was amended by Acts 2012, No. 627, effective
August 1, 2012, to remove the “and attorney fees” language. Randazzo,
supra. Amanda and Stephen were divorced after the change in the law. As
such, La. R.S. 9:355.6(3) does not provide a basis for the award of attorney
fees. Rodock v. Pommier, 16-809 (La. App. 3 Cir. 2/1/17), 225 So. 3d 512,
writ denied, 17-0631 (La. 5/1/17), 221 So. 3d 70; Randazzo, supra. The
12 statute provides for the payment of “reasonable expenses,” but it does not
separately provide for attorney fees. Odell v. Odell, 14-250 (La. App. 3 Cir.
6/4/14), 139 So. 3d 1275, writ denied, 14-1436 (La. 7/15/14), 145 So. 3d
1034. Thus, the “reasonable expenses” allowed pursuant to La. R.S.
9:355.6(3) should not have included attorney fees.
However, to raise the issue on appeal, Amanda would have been
required to either directly appeal that issue to this court or file an answer1 to
Stephen’s appeal. The record in this matter is devoid of an appeal or answer
by Amanda on the issue of attorney fees. Therefore, she is not entitled to
consideration by this court of any modification of the trial court’s judgment
in that regard. See La. C.C.P. arts. 2082 and 2133; King v. King, 51,942 (La.
App. 2 Cir. 4/11/18), 247 So. 3d 973. This issue is not properly before the
court for review, and as such, we make no amendment to the trial court’s
ruling on attorney fees.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed. The
costs of this appeal shall be shared equally by the parties.
AFFIRMED.
1 See La. C.C.P. art. 2133.