Cooper v. Chamberlain

266 So. 3d 316
CourtLouisiana Court of Appeal
DecidedDecember 12, 2018
DocketNO. 2018-CA-0617; NO. 2018-CA-0618; NO. 2018-CA-0619; NO. 2018-CA-0620
StatusPublished

This text of 266 So. 3d 316 (Cooper v. Chamberlain) 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
Cooper v. Chamberlain, 266 So. 3d 316 (La. Ct. App. 2018).

Opinion

JAMES F. MCKAY III, CHIEF JUDGE

*319In this child custody case, the father, Rye G. Cooper ("Mr. Cooper"), appeals the February 27, 2018 judgment allowing the mother, Elizabeth L. Chamberlain ("Ms. Chamberlain"), to relocate with their minor son to Nashville, Tennessee. Mr. Cooper also appeals the April 20, 2018 judgment, which was rendered in connection with the granting of his motion for new trial. We affirm both judgments.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The parties were married on January 3, 2012. Their son was born on April 29, 2012. On June 9, 2017, Mr. Cooper filed a petition for divorce. A consent judgment for interim custody was issued on November 2, 2017, wherein the parties agreed to exercise shared, joint legal custody of the minor child. On November 13, 2017, Ms. Chamberlain filed a motion for relocation of the minor child to Nashville, Tennessee, where she was offered a post-doctoral fellowship at Vanderbilt University. Ms. Chamberlain has a Ph.D. in Earth and Environmental Science, specializing in luminescence dating.

Mr. Cooper objected to the relocation, and the matter was tried on January 8, 29 and 30, 2018. A judgment and separate reasons for judgment was rendered on February 27, 2018, granting Ms. Chamberlain's motion for relocation. The judgment further awarded joint custody, with Ms. Chamberlain designated as the domiciliary parent. A summer visitation schedule was also established, with Mr. Cooper receiving a block of time with his son. Finally, the judgment ordered Mr. Cooper to submit to random drug and alcohol screenings.

Following a hearing on Mr. Cooper's motion for new trial, the trial court rendered a judgment on April 20, 2018, amending the February 27, 2018 judgment to provide for a more specific plan of implementation/visitation schedule, and to address other ancillary matters in connection with the relocation of the minor child. All other aspects of the February 27, 2018 judgment remained in effect.

Mr. Cooper's appeal from the February 27, 2018 judgment and the April 20, 2018 judgment followed. He asserts the following assignments of error:

1. The trial court erred in denying Mr. Cooper's motion to apply the uncalled witness rule when Ms. Chamberlain failed to call her mother, whom she listed as a witness;
2. The trial court erred in denying Mr. Cooper's motion for involuntary dismissal at the conclusion of Ms. Chamberlain's case;
3. The trial court erred in granting Ms. Chamberlain's motion to relocate the minor child;
4. Alternatively, the trial court erred in failing to provide an adequate plan of implementation of joint custody;
5. The trial court erred in designating Ms. Chamberlain the domiciliary parent, when that issue was not before the court; and
6. Alternatively, the trial court erred in failing to apply the custody factors set forth in La. C.C. art. 134.

DISCUSSION

Standard of Review

"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 *320discretion." Curole v. Curole , 2002-1891, p. 4 (La. 10/15/02), 828 So.2d 1094, 1096. "In conducting our review to determine whether the district court abused its discretion, we must accept each factual finding the district court made in arriving at its conclusion, unless a particular factual finding is manifestly erroneous." State ex rel. Dept. of Social Services v. Whittington , 2015-0118-119, p. 3 (La. App. 4 Cir. 5/18/16), 193 So.3d 1234, 1237 (citing LaGraize v. Filson, 2014-1353, p. 15 (La. App. 4 Cir. 6/3/15), 171 So.3d 1047, 1054 ).

Assignment of Error No. 1 : Failure to Apply the Uncalled Witness Rule

At the conclusion of Ms. Chamberlain's case, Mr. Cooper motioned the court to apply the adverse presumption against Ms. Chamberlain because she did not call her mother to testify despite listing her as a witness. The trial court denied the motion.

Ms. Chamberlain testified that her mother would be moving to Nashville with her to assist in caring for the minor child. Ms. Chamberlain's mother did not testify. Mr. Cooper questions whether Ms. Chamberlain's mother will relocate to Nashville, because she lives in Wisconsin on a farm that she owns with her husband.

In Taylor v. Entergy Corp. , 2001-0805, pp. 14-15 (La. App. 4 Cir. 4/17/02), 816 So.2d 933, 941, this Court explained the uncalled witness rule as follows:

The "uncalled witness" rule has been defined as an adverse presumption that arises when "a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence" and fails to call such witnesses. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof , § 4.3 (1999). A party's failure to call such witnesses gives rise to the presumption that "the witnesses' testimony would be unfavorable to him." Id. Although the advent of modern, liberal discovery rules has been recognized to limit this rule, it "remains viable." Id. Indeed, this court has recognized this rule applies when, as in this case, witnesses with peculiar knowledge of material facts pertinent to the case are not called. Stewart v. Great Atlantic and Pacific Tea Co. , 657 So.2d 1327, 1330 (La. App. 4 Cir. 1995) ; Gurley v. Schwegmann Supermarkets, Inc. , 617 So.2d 41, 44 (La. App. 4 Cir.1993). We have also noted that "[t]he court may consider this presumption as it would any other relevant evidence in the case." Id.

The Louisiana Supreme Court has stated that "[a]n adverse presumption exists when a party having control of a favorable witness fails to call him or her to testify, even though the presumption is rebuttable and is tempered by the fact that a party need only put on enough evidence to prove the case." Driscoll v. Stucker, 2004-589, p. 18 (La. 1/19/05), 893 So.2d 32, 47 (citation omitted).

As this Court further explained in Moretco, Inc. v. Plaquemines Par. Council , 2012-0430, p.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roth v. New Hotel Monteleone, LLC
978 So. 2d 1008 (Louisiana Court of Appeal, 2008)
Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Gurley v. Schwegmann Supermarkets, Inc.
617 So. 2d 41 (Louisiana Court of Appeal, 1993)
Stewart v. Great Atlantic and Pacific Tea Co.
657 So. 2d 1327 (Louisiana Court of Appeal, 1995)
Curole v. Curole
828 So. 2d 1094 (Supreme Court of Louisiana, 2002)
Guidry v. City of Rayne Police Department
26 So. 3d 900 (Louisiana Court of Appeal, 2009)
Connelly v. Connelly
644 So. 2d 789 (Louisiana Court of Appeal, 1994)
Driscoll v. Stucker
893 So. 2d 32 (Supreme Court of Louisiana, 2005)
Taylor v. Entergy Corp.
816 So. 2d 933 (Louisiana Court of Appeal, 2002)
Brock v. Singleton
65 So. 3d 649 (Louisiana Court of Appeal, 2011)
Gray v. Gray
55 So. 3d 826 (Louisiana Court of Appeal, 2011)
Justin Hodges v. Amy Hodges
181 So. 3d 700 (Supreme Court of Louisiana, 2015)
Moretco, Inc. v. Plaquemines Parish Council
112 So. 3d 287 (Louisiana Court of Appeal, 2013)
Mulkey v. Mulkey
118 So. 3d 357 (Supreme Court of Louisiana, 2013)
Carollo v. Carollo
118 So. 3d 53 (Louisiana Court of Appeal, 2013)
Cao v. Liberty Mutual Insurance Co.
119 So. 3d 725 (Louisiana Court of Appeal, 2013)
Hanks v. Hanks
140 So. 3d 208 (Louisiana Court of Appeal, 2014)
Ragas v. Hingle
146 So. 3d 687 (Louisiana Court of Appeal, 2014)
LaGraize v. Filson
171 So. 3d 1047 (Louisiana Court of Appeal, 2015)
Moreau v. Moreau
179 So. 3d 819 (Louisiana Court of Appeal, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
266 So. 3d 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-chamberlain-lactapp-2018.