Gathen v. Gathen

66 So. 3d 1, 2011 La. LEXIS 1121, 2011 WL 1775933
CourtSupreme Court of Louisiana
DecidedMay 10, 2011
Docket2010-CJ-2312
StatusPublished
Cited by43 cases

This text of 66 So. 3d 1 (Gathen v. Gathen) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gathen v. Gathen, 66 So. 3d 1, 2011 La. LEXIS 1121, 2011 WL 1775933 (La. 2011).

Opinions

VICTORY, J.

hWe granted this writ application to determine the appropriate standard of review of a trial court’s decision in a child relocation case, where the trial court does not expressly analyze each factor under La. R.S. 9:355.12 in determining whether relocation is in the best interest of the child. After review of the record and the applicable law, we find that while La. R.S. 9:355.12 mandates that the trial court consider all twelve factors listed in La. R.S. 9:355.12, its failure to expressly analyze each factor in its written or oral reasons does not constitute an error of law such that de novo review is appropriate. Where the trial court has considered the factors listed under La. R.S. 9:355.12 in determining whether relocation is in the best interest of the child or children, this determination is reviewed for abuse of discretion. In this case, the court of appeal erred in reviewing the case de novo. Utilizing the correct standard, we see no abuse of discretion in the trial court’s decision to deny the mother’s relocation request. Therefore, we reverse the judgment of the court of appeal and reinstate the trial court’s judgment denying relocation.

FACTS AND PROCEDURAL HISTORY

Robert Gathen (“Robert”) and Vanessa K. Gathen (“Vanessa”) met in the state of Washington while Robert was serving in the U.S. Navy. On January 6, | ¾1996, they were married in California where their first child, Andru, was born on August 3, 1997. Shortly thereafter, they moved to Thibodaux, Louisiana, where Robert’s family resided. Their second child, Evan, was born there on March 3, 2002. On August 5, 2005, Robert filed a petition for divorce and on October 11, 2005, a consent judgment awarded joint custody of the children with Vanessa designated as the domiciliary parent subject to Robert’s reasonable visitation. A joint implementation plan detailing the custodial arrangements was never filed. Vanessa was awarded monthly child support of $1,320.00 and was granted possession and use of the family home with Robert paying the house note.

On January 18, 2006, Vanessa notified Robert of her desire to relocate with the children to Puyallup, Washington. Robert objected and the trial court denied her relocation request in March of 2006.1 [4]*4Vanessa did not appeal that | Judgment. The parties were divorced on April 17, 2006. On November 20, 2006, the parties executed a community property partition agreement in which they stipulated they were equally responsible for the monthly payments of the first and second mortgage notes that were secured by the family home. The parties agreed that Robert would deduct Vanessa’s share of these payments from the child support payments and pay the remainder to Vanessa. The parties agreed not to partition the family home until Vanessa could secure another suitable residence.

In March 2009, Vanessa told Robert that she intended to relocate with the children to Puyallup, Washington, and Robert initially acquiesced. However, after Vanessa filed the required written notice on March 25, 2009, Robert filed an objection to the relocation on April 24, 2009. Subsequently, on May 22, 2009, Vanessa filed a rule seeking past-due child support in the amount of $14,900.00, an income assignment, a contempt of court ruling against Robert, attorney fees, and costs.

The trial court considered the relocation request on June 30, August 6, and August 21, 2009. The evidence presented showed that Vanessa had been the primary caregiver, and that Robert worked offshore every other seven days and had physical custody of the boys twice a month for a weekend. Vanessa testified that she lived in the state of Washington with her parents from first grade until fifth grade, returned for her sophomore year of high school to live with her sister, and returned there after high school graduation, from 1993-1995, at which time she moved with Robert to San Diego. She testified that one reason she wanted to return to Washington was to be with her family, which includes her sister and two |fichildren, and her aunt. Her mother lives in Hawaii to care for her aging grandmother, but visits Washington often and plans to relocate there. Vanessa planned to live with the boys in the bottom floor of her sister’s house rent-free, which includes a living area, two bedrooms, and a full bath. In addition, the oldest child was becoming too old for after-school care, and in Washington, her aunt and sister could pick the children up after school and help her with day care until she finished work. Vanessa presented evidence that she made $10.17 per hour working as an administrative assistant for Nicholls State University, but because of budget cuts she would not receive a merit pay increase, and, Nicholls was instituting a 6 and ½ day furlough, which would decrease her annual income. She testified that a friend in Washington had offered her a job with an orthodontic lab for $15.00 per hour, which would require her to perform the same general duties she performs at Nicholls, and work with study models for various orthodontic offices in the area. Because she would be living rent-free and have an increased salary, she would be much better able to provide for her children. Vanessa testified she has no support system in Louisiana and wants to return to Washington to be with her family and to have her sons be with her family.

Robert argued that the requested relocation is for essentially the same reasons as the 2006 relocation request which was denied, except that now she has been offered a job that pays more money. He testified that his sons have lived their entire lives in Thibodaux, that they have a strong connection to his family, their [5]*5friends and their school. He testified that the great distance between Louisiana and Washington would greatly diminish the children’s relationship with him and his family.

After hearing the testimony, the judge denied the relocation request with the following oral reasons:

|fiThe evidence establishes that the mother, Ms. Gathen, desires to relocate to the State of Washington for numerous reasons which include she has been offered employment at an orthodontic lab with an increase in income. Her current employer Nicholls State University is scheduled to impose a six and one-half day furlough without pay due to budget cuts, which would result in a reduction in her income. Her employer, Nicholls State University is also scheduled to impose a freeze regarding merit pay increases.
Also, Ms. Gathen has testified that her relocation to the State of Washington would economically benefit her. She would be relieved of the necessity to pay day care expenses because her sister residing in Washington is a homeowner.
Ms. Gathen has also testified that the child Andrew [sic] can no longer attend day care. And there, is the potential that there would be a period of time after school when there would be difficulty in providing adequate supervision.
Also, Ms. Gathen has testified that initially should she relocate to the State of Washington, she would live with her sister. She testified that she was raised in the State of Washington and that she has lived with her sister in Washington at time periods in the past.
She has also stated that a consideration for her desire to relocate to the State of Washington is that she would live closer to her mother, who is a resident of Hawaii.
Mr. Gathen opposes the relocation to the State of Washington.

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Cite This Page — Counsel Stack

Bluebook (online)
66 So. 3d 1, 2011 La. LEXIS 1121, 2011 WL 1775933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gathen-v-gathen-la-2011.