Hernandez v. Jenkins

122 So. 3d 524, 2013 WL 3117012, 2013 La. LEXIS 1309
Supreme Court of Louisiana·Decided June 21, 2013·No. No. 2012-CJ-2756·Published·Cited by 12 cases

Opinions

PER CURIAM.

|¾⅛ this child custody matter, we are called upon to determine whether the family court abused its discretion in denying a mother’s motion to relocate to another state with her minor child. For the reasons that follow, we conclude the record supports the finding that the family court failed to properly apply the relocation factors and therefore abused its discretion in denying the mother’s motion to relocate.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Misty Hernandez (“mother”) and Brandon Jenkins (“father”) are the parents of M.H., a minor child born in 2004. Although the parties were never married, [525]*525the father executed an affidavit acknowledging paternity. Both parties resided in East Baton Rouge Parish.

Shortly after M.H.’s birth, the mother petitioned for paternity, custody and child support. In October 2004, the parties entered into a stipulated judgment which designated the mother as the domiciliary parent and granted the father custody every other weekend, with extended custody during holidays and summers. Additionally, the father agreed to pay $386 per month in child support, and forty-eight percent of the child’s insurance premiums and uncovered medical expenses.

|2In March 2011, the father petitioned to have child support reduced, alleging the parties entered into an extrajudicial custody agreement that included a reduction in support. In response, the mother asserted the father failed to fully pay child support during 2008, 2009, 2010, and 2011, accumulating arrears of $1,424.00. The mother further claimed the father owed $5,445.20 as his share of child care costs. The mother also sought an increase in child support, based upon the father’s increase in income since the 2004 consent judgment, and her termination from employment because of a reduction in staff.

Before the court conducted a hearing on these motions, the mother filed a “Motion for Court Authorization to Relocate Child’s Residence,” seeking to relocate her residence and the residence of the child to Enterprise, Alabama. In her petition, the mother asserted she was engaged to be married to Gary Ray, who served in the Air National Guard and resided in Alabama. The mother indicated she recently had been laid off from her full-time employment as a mortgage processor in Louisiana and was presently working in a part-time capacity. She alleged the job opportunities in Alabama were more plentiful, and the relocation was “necessary to improve the circumstances of the Plaintiff/custodial parent and enhance the general quality of life for both the custodial parent/Plaintiff and the child.... ” Finally, she alleged the father has not paid the child support he owed and indicated she filed a motion for arrearages.1

The matter proceeded to a hearing before the family court. At the hearing, the family court heard testimony from the mother, Mr. Ray, the father and the child’s paternal grandparents.

|sThe mother testified she .was M.H.’s primary caretaker since his birth. She indicated she had recently married Mr. Ray, who was employed as an aircraft mechanic at the Fort Rucker Army Base, which was approximately six miles away from Enterprise, Alabama. Mr. Ray has two children of his own. According to the mother, M.H. got along well with Mr. Ray’s children.

The mother testified she wished to move to Enterprise, Alabama, which was approximately five hours away from Baton Rouge. She asserted the move would not affect the father’s custody rights under the October 2004 stipulated judgment and proposed the parties could exchange custody by meeting at a halfway point near Mobile, Alabama.

Regarding her employment, the mother testified she worked in the mortgage industry but had been laid off. She was unable to find employment in the Baton [526]*526Rouge area and had been working part-time at a shoe store, but that job ended. She described herself as “struggling” and noted both her mortgage and car note were behind. She had a job opportunity as a mortgage processing assistant in Alabama, which would allow her to work from home. As a result, she would not be required to place M.H. in child care after school.

The mother testified that if she was allowed to relocate, she could place M.H. in an elementary school which had a smaller class size than M.H.’s current school, Shenandoah Elementary. According to the mother, M.H. did “okay” at Shenandoah, but the classes there were big and there were complaints about M.H.’s first grade teacher.

The mother testified her relocation would not affect the father’s custody rights as set forth in the October 2004 stipulated judgment. She proposed that the parties maintain the every other weekend schedule, along with the agreed-upon holiday and bsummer schedule. Additionally, she pointed out she offered the father an additional week of custody during the spring break/Easter holiday, even though the October 2004 stipulated judgment provided only for Easter Sunday. She also indicated she would make every effort to allow the father to visit M.H. in the event the father was traveling near Alabama. She cited examples in the past where she allowed the father to see M.H. outside of the ordinary custody schedule and stated, “I’ve never told him no.”

The mother testified the father owed her past due child support in the amount of approximately $7,000. Although the court rendered a judgment for this amount in May 2011, the father had not paid any portion of this judgment at the time of the August 2011 hearing. The mother testified the father continued to pay his current child support, but has been paying it later than the 1st and 15th of the month. As evidence of late payment, she produced an envelope for the June 15 payment which was postmarked June 27.

Upon relocation, M.H. would have medical, dental and vision insurance coverage through Mr. Ray’s employer. Mr. Ray worked from 5:30 a.m. to 2:00 p.m. and would be able to assist in taking care of M.H. The mother testified M.H. got along very well with Mr. Ray.

Mr. Ray testified that he has lived in Alabama for over ten years. He was under a six-year contract with the National Guard of Alabama, and had four years remaining on his contract. He looked for work in Louisiana, but was unable to find any positions. Mr. Ray testified he was willing to help the mother care for M.H. Mr. Ray noted M.H. referred to him as “Dad,” but testified he did not request that M.H. refer to him in that manner.

UM.H.’s paternal grandmother, Donna Jenkins, testified she frequently saw M.H. or talked with him on the phone. Mrs. Jenkins, a retired teacher, helped M.H. with homework, and encouraged M.H. to read books. She testified her son (M.H.’s father) had a “good salary” and was able to provide a “nice permanent home” for M.H. She indicated her family was involved in many clubs and organizations in the Baton Rouge area, and felt these family activities added a lot to M.H.’s life. She considered M.H. to be a “very important part of our family,” and she “would love for him to be a part of it.”

M.H.’s paternal grandfather, Kenneth Jenkins, testified he engaged in several activities with M.H., including fishing and hunting, and going to LSU games. Mr. Jenkins considered M.H.’s father to be a good provider for M.H., and believed he had a stable work history. Mr. Jenkins [527]*527felt that if M.H. moved to Alabama, he probably would have no contact with M.H.

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Hernandez v. Jenkins, 122 So. 3d 524, 2013 WL 3117012, 2013 La. LEXIS 1309 (La. 2013).

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