Curole v. Curole

828 So. 2d 1094, 2002 WL 31303011
Supreme Court of Louisiana·Decided October 15, 2002·No. 2002-C-1891·Published·Cited by 69 cases

Opinion

828 So.2d 1094 (2002)

Michael Lyndal CUROLE
v.
Grace Yin-Yee Wong CUROLE.

No. 2002-C-1891.

Supreme Court of Louisiana.

October 15, 2002.

Lee W. Rand, Bennett Wolff, for Applicant.

Lila M. Samuel, for Respondent.

KIMBALL, Justice.

The issue presented to this Court is whether the trial court abused its discretion in denying a custodial parent's request for relocation to Cleveland, Ohio. After applying the statutory criteria listed in R.S. 9:355.12, the trial court determined that the mover did not meet her burden of proving the proposed relocation would be in the best interest of the children. The court of appeal then reversed the trial court's judgment, concluding that the trial court abused its discretion and that the evidence and testimony support a finding that relocation would be in the children's best interest. Upon review, we find the record reflects that the trial court properly considered all of the factors mandated by La. R.S. 9:355.12 and reasonably concluded, *1095 based on a totality of the circumstances, that relocation would not be in the children's best interest. We therefore reverse the judgment of the court of appeal and reinstate the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

G.C. and M.C. are the parents of two children, N.C. and E.C.[1] At the time of the proceeding in question, N.C. was six years old and E.C. was two years old. The parents were divorced in March 2001. G.C. and M.C.'s relationship has always been filled with conflict and occasionally involved physical altercations.

While G.C. has always been the primary caretaker, both G.C. and M.C. have been actively involved in parenting their children. By a consent judgment, they share joint custody, and G.C. is the domiciliary parent. M.C. is entitled to visitation with the children every weekend and alternating Fridays. M.C. has consistently exercised his visitation.

In October of 2000, G.C. notified M.C. that she wished to relocate with the children to Cleveland, Ohio. M.C. filed a timely objection to the relocation of the children.

G.C. desires to relocate to the Cleveland area, to participate in a business financed by her brother-in-law, the husband of G.C.'s sister. The business entails an importation of high-end Italian furniture to be sold in the Cleveland area, as well as over the Internet. G.C. would have an equity interest in the business and would earn a salary of $50,000 per year plus benefits. G.C. and the two children would initially live with G.C.'s sister and brother-in-law, who own a large home in an affluent area. G.C. presented evidence showing that the area has excellent schools, medical facilities, and so forth. G.C. stated the reasons she wishes to move are that the relocation to Cleveland will provide a better environment for the children, will give her an opportunity to start over, and will allow her to escape the strain of her relationship with M.C. G.C. denied that the relocation was an attempt to remove her children from contact with their father.

Prior to the hearing on the proposed relocation, M.C. began to have problems getting N.C. to come with him for visitation. M.C. believed that G.C. was encouraging N.C. to resist visitation. G.C., on the other hand, contended that it was M.C.'s conduct that caused N.C. to resist visitation. On one occasion, N.C. resisted leaving with her father so fervently, M.C. decided to call the police to assist him in enforcing his visitation. The officer who arrived refused to take any action because he found no violation of the law.

After hearing evidence on the proposed relocation, the trial court concluded that relocation is not in the children's best interest and thereby denied the relocation request. The trial court found that G.C. met her burden of proving that her relocation request was made in good faith. However, after considering each factor enunciated in La. R.S. 9:355.12, the trial court concluded that the proposed relocation would not be in the best interest of the children. The trial court therefore denied the proposed relocation.

*1096 The court of appeal reversed the trial court's judgment, concluding the trial court clearly abused its discretion by giving weight to Dr. Parker's recommendation, which was non-specific to the parties and based on general theories, over Dr. Van Beyer's recommendation, which was specific to the parties in this case and based on a direct evaluation of them. Curole v. Curole, 02-153 (La.App. 5 Cir. 6/26/02), ___ So.2d ___, 2002 WL 1378874. The intermediate appellate court concluded the evidence and testimony supported a finding that the relocation would be in the children's best interest. The court of appeal further found that relocation would reduce the friction and conflict between the parties, while the children would continue to have frequent and extensive visitation with their father. Thus, finding error in the trial court's judgment, the court of appeal reversed and granted the relocation request.

We granted certiorari to consider the correctness of the court of appeal's judgment. Curole v. Curole, 02-1891 (La.7/29/02), 821 So.2d 487.

LAW AND DISCUSSION

As in judicial determinations involving children in the context of divorce, adoption, and termination of parental rights, Louisiana's relocation statutes retain the "best interest of the child" standard as the fundamental principle governing decisions made pursuant to its provisions. A trial court's determination in a relocation matter is entitled to great weight and will not be overturned an appeal absent a clear showing of abuse of discretion.

Louisiana's relocation statutes are based on the American Academy of Matrimonial Lawyers Model Relocation Act. Edwin J. Terry, Kristin K. Proctor, P. Caren Phelan, & Jenny Womack, "Relocation: Moving Forward, or Moving Backward?" 15 Journal of the American Academy of Matrimonial Lawyers 167, 225 (1998). These statutes, La. R.S. 9:355.1-9:355.17, govern the relocation of a child's principal residence to a location outside the state, or, if there is no court order awarding custody, more than 150 miles within the state from the other parent, or, if there is a court order awarding custody, more than 150 miles from the domicile of the primary custodian at the time the custody decree was rendered. Pursuant to these statutory provisions, the parent wishing to change the principal residence of the child must notify the other parent of the proposed relocation by registered or certified mail within a certain time period specified in La. R.S. 9:355.4. The primary custodian of the child or a parent who has equal physical custody may relocate the principal residence of the child after providing the required notice unless the parent entitled to notice initiates a proceeding seeking a temporary or permanent order to prevent the relocation within twenty days after the receipt of the notice. La. R.S. 9:355.7.

Pursuant to La. R.S. 9:355.13, the relocating parent has the burden of proving that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. In deciding to adopt this burden of proof, our legislature chose the most conservative option in the Model Act. See Terry et al., supra, at 225. Because of serious disagreement on the issue, the drafters of the Model Act could not reach a consensus regarding the appropriate burden of proof to be imposed in relocation cases. Therefore, instead of recommending one burden, the drafters proposed three alternatives and left this issue for each legislature to determine for itself. See Model Relocati

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