Cass v. Cass

52 So. 3d 215, 10 La.App. 3 Cir. 327, 2010 La. App. LEXIS 1580, 2010 WL 4628503
CourtLouisiana Court of Appeal
DecidedNovember 17, 2010
Docket10-327
StatusPublished
Cited by4 cases

This text of 52 So. 3d 215 (Cass v. Cass) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cass v. Cass, 52 So. 3d 215, 10 La.App. 3 Cir. 327, 2010 La. App. LEXIS 1580, 2010 WL 4628503 (La. Ct. App. 2010).

Opinions

AMY, Judge.

|,The defendant appeals a judgment of the trial court disallowing him to relocate to Texas with his minor son and naming the plaintiff as domiciliary parent. For the following reasons, we reverse and remand.

[218]*218Factual and Procedural Background

Ms. Jamie Cass, the plaintiff and appel-lee, and Mr. Kevin Cass, the defendant and appellant, obtained a judgment of divorce on July 31, 2009. Pursuant to a consent judgment, the parties shared joint custody of one minor child born of the marriage. The consent judgment, entered on May 28, 2009, detailed a shared physical custody schedule and designated Mr. Cass as the domiciliary parent.

The record reveals that Mr. Cass, a Sergeant First Class in the Army, received orders in early 2009 informing him that he was being transferred from Fort Polk in Louisiana to Fort Hood in Texas. Mr. Cass asserts that at some time in either April or May 2009, he informed Ms. Cass, a Lieutenant in the Army, of the transfer order. On May 29, 2009, Ms. Cass filed an “Objection to Relocation, Rule For Relocation Evaluation, and Rule For Custody” seeking to prevent Mr. Cass from moving out of Louisiana with the child until a hearing could be held in addition to requesting that she be named the domiciliary parent. Mr. Cass answered Ms. Cass’s objection and filed a rule for a temporary order to relocate.1 On July 29, 2009, the trial court denied Mr. Cass’s request to temporarily relocate the child to Fort Hood, and a hearing was set to determine the permanent relocation issue.

Following a three-day hearing, the trial court issued oral reasons for judgment denying Mr. Cass’s request to relocate, changing domiciliary custody to Ms. Cass, and denying Mr. Cass’s request to remain in Louisiana as a domiciliary custodian. |2A “Judgment on the Rule” was subsequently signed; however, the written judgment did not contain reference to the trial court’s denial of Mr. Cass’s request to remain in Louisiana as a domiciliary custodian. Mr. Cass filed a Motion for Entry of Supplemental Judgment, and on September 10, 2009, the trial court issued a supplemental judgment reflecting that denial.

Mr. Cass appeals, asserting the trial court erred in: (1) misapplying the relocation statute and denying his request to relocate; (2) failing to follow the required analysis in relocation cases; (3) finding that his move to Texas constituted a change in circumstance warranting a modification of the initial consent judgment; (4) naming the defendant as the domiciliary parent and refusing to recognize him as a Louisiana domiciliary; (5) failing to have the child’s in camera interview transcribed; (6) ignoring the mental health evaluator’s findings; and (7) refusing to let the mental health evaluator see the minor child to further evaluate emotional issues.

Discussion

Standard of Review

Mr. Cass first asserts that this court should conduct a de novo review of the present matter, contending that the trial court: failed to consider the relocation factors enumerated in La.R.S. 9:355.12; ignored the applicable burden of proof under La.R.S. 9:355.13, and; in making its decision, the trial court relied upon what the child related to it in an in camera conversation that was not transcribed. He argues that these alleged failures constitute legal error; therefore, this court is not bound by the manifest error standard.

is A parent seeking relocation must prove two things: (1) that the proposed relocation is in good faith and (2) that the proposed relocation is in the best interest of the child. La.R.S. 9:355.13. Louisiana Revised Statutes 9:355.12 enumerates fac[219]*219tors the trial court shall consider in deciding a contested relocation, as follows:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the pai’ties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, | including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

This statute mandates that the trial court consider the enumerated factors; however, it does not require the court to give preferential consideration to any certain factor. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094. A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. Id. Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson, 09-609 (La.App. 3 Cir. 11/18/09), 25 So.3d 203, citing Mart v. Hill, 505 So.2d 1120 (La.1987). On review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
52 So. 3d 215, 10 La.App. 3 Cir. 327, 2010 La. App. LEXIS 1580, 2010 WL 4628503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cass-v-cass-lactapp-2010.