Gray v. Gray

55 So. 3d 826, 2010 WL 4629933
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2011
Docket45,826-CA
StatusPublished
Cited by4 cases

This text of 55 So. 3d 826 (Gray v. Gray) 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
Gray v. Gray, 55 So. 3d 826, 2010 WL 4629933 (La. Ct. App. 2011).

Opinions

WILLIAMS, J.

_|jThe plaintiff, Jason Gray, appeals judgments denying his relocation to Kansas with the parties’ minor child and modifying the prior custody award. The court designated the defendant, Christy Bruner, as the primary domiciliary parent of the child and awarded the father visitation. For the following reasons, we affirm.

[828]*828FACTS

In October 2001, a child was born of the mamage of Jason Gray (“Gray”) and Christy Bruner, formerly Gray (“Bruner”). The matrimonial domicile was in More-house Parish, Louisiana, until the parties separated in May 2005. In a consent judgment, the parties were awarded joint custody of the minor child and Gray was designated as the domiciliary parent. Subsequently, the district court rendered a judgment of divorce. In March 2007, Gray gave notice of his intent to relocate with the child to Alabama to join his fiancee, Jamie Schmitt, who had moved there because of her job with John Deere Credit. Bruner filed an objection to the relocation and a rule to modify the domiciliary custody. After a conference in June 2007, a hearing officer recommended that Gray’s proposed relocation be denied and that Bruner be awarded primary custody of the child. In October 2007, following a trial, the court approved the father’s relocation with the child to Alabama and denied the mother’s motion to modify custody. The court found that Bruner had not completely recovered from her abuse of prescription drugs. In November 2007, Gray moved to Alabama with the child.

Approximately one year later, Gray sent Bruner notice of a proposed | ^relocation with the minor child to Kansas, based on another job transfer by Jamie, who was then Gray’s wife. Bruner filed objections to this proposed relocation in Louisiana and Alabama. In Louisiana, the court issued an order prohibiting Gray from relocating the child to Kansas pending a hearing and the Alabama court declined to exercise jurisdiction over the proposed relocation. Gray moved to Kansas with the child in violation of the court order and then filed a motion for a temporary order to relocate. In January 2009, Bruner filed a rule to modify custody seeking an award of primary domiciliary custody.

After a trial on the objection to relocation and the modification of custody, the court issued oral reasons for judgment discussing its consideration of the relocation factors of LSA-R.S. 9:355.12. The court found that in moving to Kansas the father was subordinating the child’s best interest to the advancement of his current wife’s career, which had required frequent moves, and that the relocation was not in the child’s best interest. The trial court rendered judgment denying the relocation of the minor child to Kansas and ordering the parties to submit briefs regarding whether the modification of custody in this case required application of the standard in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Subsequently, the trial court issued oral reasons for judgment finding ,that the Ber-geron standard was not applicable to this situation because the statutory exception of LSA-R.S. 9:355.11 provides that the relocation of a party in violation of a court order is a sufficient change in circumstances to support the modification of custody. Alternatively, the court found that Leven if Bergeron was applicable, then Bruner had satisfied her burden of proving that a change in circumstances materially affecting the child’s welfare had occurred through her rehabilitation from a past drug addiction, and that any harm caused by a change of environment would be substantially outweighed by the advantages to the child, such as more frequent contact with his maternal and paternal grandparents. The court rendered judgment granting a modification of custody, designating Bruner as the primary domiciliary parent of the minor child and awarding Gray scheduled visitation. Gray appeals both judgments.

DISCUSSION

Gray contends the trial court erred in sustaining the objection to relocation of the [829]*829child. Gray argues that the evidence showed the move to Kansas was in the child’s best interest and that the court should have compared Alabama, not Louisiana, as the alternative situation in applying the relocation factors.

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 discretion. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094; Bingham v. Bingham, 44,292 (La.App.2d Cir.5/13/09), 12 So.3d 448. Pursuant to LSA-R.S. 9:355.13, the parent seeking relocation has the burden of proving that the proposed relocation is made in good faith and in the best interest of the child. LSA-R.S. 9:355.12 provides that in making a decision regarding a proposed relocation, the court shall consider these factors:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate |4and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

Although the statute mandates that all the listed factors be considered, the |r,court is not required to give preferential consideration to any particular factor. Curole, supra; Parker v. Parker, 44,246 (La.App.2d Cir.5/13/09), 12 So.3d 485.

In the present case, the trial court thoroughly considered the statutory factors.

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Bluebook (online)
55 So. 3d 826, 2010 WL 4629933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-gray-lactapp-2011.