Henry v. Henry

904 So. 2d 800, 2005 La. App. LEXIS 1461, 2005 WL 1277933
CourtLouisiana Court of Appeal
DecidedMay 31, 2005
DocketNo. 04-CA-1249
StatusPublished

This text of 904 So. 2d 800 (Henry v. Henry) 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
Henry v. Henry, 904 So. 2d 800, 2005 La. App. LEXIS 1461, 2005 WL 1277933 (La. Ct. App. 2005).

Opinion

CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

Susan and Timothy Henry were married and had one daughter, Kailee, born May 18, 1993. They lived in St. Charles Parish until Susan and Timothy separated on January 23, 1995. Temporary custody was granted to Susan and she and Kailee moved to Arkansas. A judgment of divorce was signed on April 10, 1998. Susan was granted domiciliary custody and Timothy was granted visitation rights.

A Motion for Change of Custody was filed by Timothy on November 20, 1998 alleging that Susan was an unstable mother. Timothy was granted provisional custody pending a hearing on the motion. The hearing was held on January 6, 1999 and the parties entered into a consent judgment on March 4, 1999. . At that time, Susan and Kailee had returned and were living in Louisiana. The consent judgment provided that custody, visitation and support would remain the same with Susan as the primary domiciliary parent and Timothy would have visitation, there would be no overnight guests of the opposite sex who was not a spouse or relative of the parties, and relocation of Kailee was subject to the relevant statutory requirements.

[802]*802On October 8, 2003 Susan mailed Timothy a notice of proposed relocation of Kai-lee’s domicile to Fayetteville, Arkansas, Both Susan and Timothy have | ¡¡family members that live in Arkansas. In response to that letter, on October 20, 2003, Timothy filed an Objection to Relocation of Child’s Custody and Alternative Rule to Modify Custody. A temporary restraining order was issued preventing Susan from removing Kailee from the jurisdiction pending a hearing.

A supplemental consent judgment was entered into April 5, 2004. According to that judgment, Diana Carroll was appointed as the court’s independent mental health expert to evaluate the parties. A hearing on the matter of relocation was set for June 16, 2004. As part of the evaluation process, Timothy submitted to a drug screening test and tested positive for cocaine. On June 3, 2004, Diana Carroll submitted her report to the court. She recommended that the relocation was made in good faith and in the best interest of Kailee. .

On June 15, 2004, Timothy filed a Motion to Continue the Hearing and for Evaluation by Defendant’s Expert. The trial court granted the motion. Timothy then retained Dr. Steven York to perform the evaluations. During the time the evaluations were being performed, an incident occurred on June 23, 2004 while Kailee was in the custody of her father and stepmother, Kaylyn Henry. Timothy had been drinking and wás upset over a problem with his home computer. He had a gun, a .357 Magnum revolver, which he retrieved from his bedroom. Kailee, his other two step-children, and his wife were all present in the house at the time of the incident, although Timothy never pointed the gun towards, or threatened, anyone. The police were called and he voluntarily relinquished the gun and himself.

Kaye, Timothy’s wife, filed a Petition for Protection from Abuse alleging that Timothy loaded the gun and threatened suicide, abused alcohol and had been distraught since January. She also alleged that he had threatened to burn the house down and had threatened suicide in the past. She contended he loses control when household things are not done perfectly, Kaye attested that she was fearful for her 14life. Upon the motion of Kaye, that petition was dismissed by the trial court on July 16, 2004.

On July 2, 2004, Susan filed an Ex Parte Motion for Temporary Sole Custody, Motion for Temporary Restraining Order, and Motion for Sole Custody subject to supervised visitation by Timothy. The trial court granted temporary sole custody to Susan and temporarily suspended Timothy’s visitation. The trial court also issued a temporary restraining order keeping Timothy away from Kailee or Susan.

The trial of this matter was held July 16, 19, & 20, 2004. A Judgment was rendered by the trial court on July 23, 2004. By that Judgment, the trial court denied Susan’s petition to relocate, denied Susan’s motion for sole custody, and vacated the temporary restraining order against Timothy. The trial court temporarily amended Timothy’s visitation schedule providing that Kaye, his current wife, shall supervise all visits, there would be no overnight visits with Timothy alone, and this schedule would continue until he completes substance abuse and behavioral evaluations and complies with the recommendations for treatment. The trial court further provided that Dr. Kennison Roy shall conduct the substance abuse evaluation and implement any necessary treatment programs. If Dr. Roy is not available, then Dr. York may select another qualified professional. In addition, the trial court provided that Dr. York, or a qualified professional desig[803]*803nated by him, shall conduct the behavioral evaluations and implement any necessary treatment programs. The behavioral evaluations will include an assessment for the need for anger management counseling or therapy. Finally, the trial court stated that Timothy must comply with Dr. Roy and Dr. York’s treatment recommendations for both his rehabilitation and the emotional re-unification of Timothy and Kailee.

[sThe trial court provided instructions to Timothy that once he complied with the conditions, he could file an ex-parte motion with copies of reports from Dr. Roy and Dr. York certifying his completion of all necessary programs. Susan could, thereafter, file objections to the reinstatement of unsupervised visitation or custody.

The trial court held that the proposed relocation was not in the best interest of the child, but was in Susan’s best interest because she wanted to be near her family. The trial court stated it was not in the child’s best interest to relocate and effectively sever her long-standing relationship with her father.

Susan now appeals this judgment alleging six assignments of error: 1) the trial court erred in failing to apply the proper law and the factors set out in the relocation statutes; 2) the trial court erred in failing to afford greater weight to the testimony and the recommendations of Diana Carroll, LCSW, JD, the court-appointed independent expert, in favor of relocation; 3) the trial court erred in failing to admit the custody evaluations into evidence and in failing to allow extensive questioning of the “expert” regarding the twelve factors of the statute; 4) the trial court erred in giving any weight to the testimony of Mr. Henry’s hired gun expert, especially since the “expert” made significant mistakes in the evaluation process; 5) the trial court erred in according credibility to Mr. and Mrs. Henry’s testimony; and 6) the trial court’s conclusions are inconsistent with the facts, the record, and the law, and based only on speculation.

For the reasons which follow, we affirm the trial court’s judgment.

DISCUSSION

La. R.S. 9:355.12 provides the factors to be used by the court in determining a contested relocation. That statute provides:

|fiA. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.

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904 So. 2d 800, 2005 La. App. LEXIS 1461, 2005 WL 1277933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-henry-lactapp-2005.