Franz v. Franz

737 So. 2d 943, 1999 WL 410297
Louisiana Court of Appeal·Decided June 16, 1999·No. 98-CA-3045·Published·Cited by 4 cases

Opinion

737 So.2d 943 (1999)

Conrad H. FRANZ, Jr.
v.
Roseanne T. FRANZ.

No. 98-CA-3045.

Court of Appeal of Louisiana, Fourth Circuit.

June 16, 1999.

Debra M. Kesler, Metairie, LA, Counsel for Plaintiff.

*944 Elizabeth Rue Brennan, Bridgeman Law Firm, New Orleans, LA, Counsel for Defendant.

Court composed of Judge WILLIAM H. BYRNES III, Judge MIRIAM G. WALTZER and Judge PATRICIA RIVET MURRAY.

WALTZER, Judge.

STATEMENT OF THE CASE

On 20 January 1995, Conrad Franz, Jr. filed a petition to divorce his wife, Roseanne T. Franz and the trial court rendered judgment of divorce on 28 June 1995. On 5 March 1997, Roseanne filed a rule to establish custody, child support and to partition community property and on 20 March the trial court awarded the parties joint custody of the children, with Roseanne as the primary domiciliary parent.

On 19 September 1997, Conrad moved to modify custody to name him primary custodial parent, alleging that Roseanne had taken the children out of the jurisdiction without leave of court and was living in open concubinage with a married man, Guillermo A. Ramos. On 5 November 1997, the trial court entered a consent judgment granting the parties joint custody with Roseanne remaining primary custodial parent subject to reasonable visitation by Conrad, ordering Conrad to pay $660 per month child support, one-half of Samantha's Catholic school tuition and expenses, and a $705 child support arrearage. Conrad was also ordered to provide and maintain the present policy of major medical, health, hospitalization and dental insurance for the minor children. On 29 January 1998, a second consent judgment was rendered pursuant to which the parties agreed in part to provide each other with pertinent information concerning the children, including school progress reports, report cards and medical treatment, within 48 hours of receipt of the information.

On 9 June 1998, Conrad filed an Objection to Roseanne's intent to move to Atlanta, Georgia, alleging that such a move would be detrimental to the minors and would interfere with the father-children relationship. The next day, Conrad filed a rule to restrain Roseanne from leaving the state until a hearing could be held. The trial court heard the matter on 30 June 1998 and appointed a mental health evaluator. After having taken the matter under advisement, the trial court entered judgment on 27 July 1998 granting the rule to prohibit relocation of the children to Atlanta. On 24 August 1998 Roseanne moved for a devolutive appeal of that judgment[1]. Finding no error in the trial court's judgment, we affirm.

STATEMENT OF FACTS

Conrad and Roseanne Franz were married on Orleans Parish on 8 January 1988. Of that marriage, two children were born, Samantha Lynn, born 5 March 1989, and Conrad III, born 6 November 1992.

Roseanne testified at the relocation hearing that she married Mr. Ramos about a week prior to the hearing. She is a certified teacher, but did not have a job in Atlanta at the time of the hearing. She testified that during 1997 Mr. Ramos earned about $15,000 and she earned $23,900 as a teacher in East Baton Rouge Parish. Mr. Ramos moved to Atlanta on 18 May and took a job paying him $35,000 annually. Roseanne testified that she intended to move to Atlanta with the children, and would live, at least temporarily, with her parents. She offered to pay the *945 cost to fly the children to New Orleans once a month to visit their father and to arrange a second monthly visit by alternative transportation. Mr. Ramos would accompany the children at his expense. Conrad testified that he would be willing to pay part of the transportation expenses in order to be able to see his children more frequently, although the cost would create a substantial financial hardship for him.

Mr. Ramos' former wife testified that she was then in the process of trying to make arrangements with him for the support of their three children. Mr. Ramos paid her $450 monthly child support. The children had attended St. Dominic's Catholic school for six years; however, at the time of the relocation hearing, their mother was engaged in litigation to require Mr. Ramos to pay their tuition.

Roseanne testified that her parents live in Atlanta and her aunts live in New Orleans. The children have friends in Atlanta, where they have visited every summer from three to seven weeks. Conrad testified that they had never stayed that long in Atlanta. According to Roseanne, since moving to Baton Rouge she has transported the children to their visits with Conrad, who had not traveled to Baton Rouge to visit the children or to participate in their extra-curricular activities. Conrad testified that Roseanne failed to advise him of the children's activities.

Roseanne admitted that she had not incurred any moving expenses or made any deposits in Atlanta at the time of the hearing, and that she had chosen to retire from her position as a Jefferson Parish school teacher.

Conrad testified that he is Commander of Incident Management for the Causeway Police Department. His hours are totally flexible, as long as he works eight hours in a day. He testified that it would work a hardship on him to have to drive eight hours to visit the children in Atlanta. If he were to become the children's primary custodial parent, he testified he would not seek child support from Roseanne.

He testified that when the children lived in New Orleans, they were enrolled in baseball and gymnastics, and he took them to their activities every Saturday. According to Conrad, after the children were moved to Baton Rouge, that activity ended. When he had weekend visitation, he took the children to the Aquarium, the lake and other similar venues, and spent time with them. He testified that after the move to Baton Rouge he was unable to participate in their daily lives or to help them with their homework. He expressed concern that a move to Atlanta would further restrict his contact with the children. He also testified that he did not want the children living with Roseanne's parents in Atlanta because of "bad blood" between him and the grandfather, and because of his fear that the grandfather is unstable. The grandfather seriously damaged Conrad's car with a hammer while in a rage. Conrad witnessed the grandfather slap Roseanne's mother in the face, and had to step between the grandfather and Roseanne to protect her on an occasion when she had stayed out past her curfew.

He testified that if he becomes the primary custodial parent, he will live with the children in his three bedroom home. He earns $28,000 to $30,000 annually and pays $660 a month in child support. His mother is available within an hour to help with the children. The majority of the family lives in Louisiana, including aunts and uncles on his side and cousins, aunts and uncles on Roseanne's side.

The trial court in its reasons for judgment found the following facts:

— Roseanne established that the proposed relocation was made in good faith.

— The parents appear to be doing their best to cooperate in raising their two minor children.

— Roseanne, as domiciliary parent, has taken every opportunity to encourage a close relationship between the children and Conrad.

*946 — Conrad has demonstrated his desire to cooperate with Roseanne concerning the children's welfare.

— Since the parties entered into their consent custody arrangement there have been few problems arising between the parents requiring judicial intervention.

— Mr. Ramos is making an annual salary of $35,000 in Atlanta.

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Franz v. Franz, 737 So. 2d 943, 1999 WL 410297 (La. Ct. App. 1999).

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