Elliott v. Elliott

916 So. 2d 221, 2005 WL 1109457
CourtLouisiana Court of Appeal
DecidedMay 11, 2005
Docket2005 CU 0181
StatusPublished
Cited by21 cases

This text of 916 So. 2d 221 (Elliott v. Elliott) 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
Elliott v. Elliott, 916 So. 2d 221, 2005 WL 1109457 (La. Ct. App. 2005).

Opinion

916 So.2d 221 (2005)

Eric J. ELLIOTT
v.
Carrie Barber ELLIOTT.

No. 2005 CU 0181.

Court of Appeal of Louisiana, First Circuit.

May 11, 2005.

*223 C. Jerome D'Aquila, New Roads, for Plaintiff—Appellee Eric J. Elliott.

Mark M. Lazarre, M. Therese Nagem, Kathryn Flynn Simino, Baton Rouge, for Defendant — Appellant Carrie Barber Elliott.

Before: PARRO, KUHN, and WELCH, JJ.

WELCH, J.

This is an appeal by Carrie Barber Elliott from a judgment rendered in favor of Eric J. Elliott, which denied her request to relocate the residence of their two minor children to Natchitoches, Louisiana, changed the designation of the domiciliary parent of the minor children solely to Eric Elliott, and ordered the parties to submit a joint custody plan consistent with the court's ruling. For the reasons that follow, we reverse the judgment of the trial court insofar as it designated Eric Elliott as the children's sole domiciliary parent; we vacate the joint custody implementation plan signed by the trial court pursuant to that judgment; and we reinstate the parties' previous stipulated judgment (custody decree).[1]

FACTUAL AND PROCEDURAL HISTORY

The parties in this matter, Eric Elliott and Carrie Elliott, were married to one another on May 13, 1995, and had two children during their marriage. The parties separated, and on April 10, 2001, a petition for divorce was filed. A judgment of divorce was subsequently signed on January 10, 2003. During the pendency of the divorce proceedings, the parties entered into a stipulated judgment on December 12, 2001, which judgment was signed on January 16, 2002.[2] This stipulated judgment awarded the parties joint custody of *224 the two minor children, with the parties designated as co-domiciliary custodial parents, subject to specific, regular custodial periods to be exercised by each of the parties, with slight modifications of the custodial periods for holidays, birthdays, and summer vacations. The judgment also provided that, in the event there were any disagreements between the parties on major decisions concerning the children, the matter would be set for hearing and submitted to the court for a decision.

On June 11 and 17, 2003, Eric Elliott received letters from Carrie Elliott informing him that she intended to relocate her residence and the children's residence to Tyler, Texas. Eric Elliott timely objected to the proposed relocation by filing a rule to modify the custody plan, objecting to the relocation, for injunctive relief, and alternatively, for the posting of security. In his rule, Eric Elliott alleged he had received notice that Carrie Elliott intended to relocate with the minor children to Tyler, Texas, and he objected to the proposed relocation of the children's residence because the notice failed to comply with the legal requirements of a notice of a proposed relocation of a child's residence, because the proposed relocation was not made in good faith, and because the proposed relocation was not in the best interest of the children. He alleged that since the proposed relocation was not made in good faith and was not in the best interest of the children, he should be awarded sole custody of the minor children, subject to reasonable visitation by Carrie Elliott.

Carrie Elliott filed an answer to the objection to the relocation of the children, alleging that she was acting in good faith, that she has always promoted the relationship between the children and Eric Elliott, and that the proposed relocation would not significantly change their relationship. She further alleged that due to the children's age, the proposed relocation would not impact the children's physical, educational, or emotional development, would enhance the general quality of life for both of the children, and was in their best interest. According to the record, a limited evidentiary hearing, in accordance with La. R.S. 9:355.10 B and C, was held on July 25, 2003, and August 8, 2003. After the presentation of Carrie Elliott's case, the trial court granted Eric Elliott's motion for involuntary dismissal under La. C.C.P. art. 1672 B and denied Carrie Elliott's request to relocate the residence of the minor children to Tyler, Texas.[3]

Thereafter, on February 4, 2004, Eric Elliott received a letter from Carrie Elliott informing him that she intended to relocate her residence and the children's residence to Natchitoches, Louisiana. Eric Elliott timely objected to the proposed relocation by filing a rule to modify the custody plan, objecting to the relocation, for injunctive relief and alternatively, for the posting the of security. In his rule, Eric Elliott alleged he had received notice that Carrie Elliott intended to relocate with the minor children to Natchitoches, Louisiana, and he objected to the proposed relocation of the children's residence because the notice failed to comply with the legal requirements of a notice of a proposed relocation of a child's residence, because the proposed relocation was not made in good faith, and because the proposed relocation was not in the best interest *225 of the children. He further alleged that since the proposed relocation was not made in good faith and was not in the best interest of the children, and considering the factors set forth in La. C.C. art. 134, he should be awarded sole custody of the minor children, subject to reasonable visitation by Carrie Elliott. Additionally, Eric Elliott alleged that he and Carrie Elliott were in disagreement as to where the oldest child would attend school. He desired for the child to attend Catholic Elementary in New Roads since the children were baptized in the Catholic faith.

Carrie Elliott filed an answer and reconventional demand to his rule requesting that she be awarded sole custody, or alternatively, that the parties be awarded joint custody and that she be designated as the children's domiciliary parent with the right to move to Natchitoches. She also requested a psychological evaluation be performed on the parties and the children for the purpose of determining custody. After an exception of no cause of action was filed by Eric Elliott, Carrie Elliott amended her reconventional demand to allege that her intended move to Natchitoches would render the present physical custodial arrangement unworkable once the move took place such that the court would need to decide, for school purposes, where the children would primarily reside. Additionally, Carrie Elliott listed several reasons why she believed the move to Natchitoches would be better for the children and the reasons why she believed she should be awarded custody or designated as the domiciliary parent of the children — particularly, that the children would do better in an environment where they had a "permanent home" and were not moved from week to week, and that the two children, who were female, had developed a closer bond and relationship with her and were entering the years of their lives when they needed her attention.

A hearing on these issues was held before a hearing officer on April 7, 2004. After considering the law and the evidence, the hearing officer recommended that the children's residence not be relocated to Natchitoches, Louisiana, and that the parties continue to share custody of the children pending further order of the court.

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Cite This Page — Counsel Stack

Bluebook (online)
916 So. 2d 221, 2005 WL 1109457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-elliott-lactapp-2005.