STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2023 CU 0945
JOHN PICKNEY MORGAN
VERSUS
FELICIANA LOPEZ MORGAN
JSJudgment Rendered: APR 19 2024
Appealed from the 21 st Judicial District Court Parish of Livingston, State of Louisiana No. 165457
The Honorable Jeffery T. Oglesbee, Judge Presiding
Adam John Verret Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana John Pickney Morgan
Jenel Guidry Secrease Attorney for Defendant/Appellee, Ponchatoula, Louisiana Feliciana Lopez Morgan
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ. WOLFE, J.
The father appeals a judgment of the trial court that modified the previously
entered custody judgment to name the mother, who lives in the Philippines, the
domiciliary parent, denied his cross motion to modify custody, held the father in
contempt, and denied his motion for new trial and alternate motion to modify spousal
support. We affirm.
FACTS
John Pickney Morgan is a domiciliary of the State of Louisiana and Feliciana
Lopez Morgan is a domiciliary of the Philippines. They married on April 7, 2002,
in Livingston Parish, then lived in both Louisiana and the Philippines. Two children
were born of the marriage—,one who is now a major, and MJ.L.M.,' who was born
in the Philippines on October 2, 2010. Both children hold dual citizenship in the
United States and the Philippines. The parties raised the children in the Philippines
until early 2020, when John returned to Louisiana with the children for the stated
purpose of renewing their United States passports. Feliciana remained in the
Philippines. Soon thereafter, travel restrictions were imposed as a result of the
COVID- 19 pandemic. Since the children remained in Louisiana, Feliciana agreed
that they should be enrolled in school in Louisiana.
In October 2020, John instituted this suit against Feliciana, seeking a divorce
and joint custody of the children. He requested that he be named the domiciliary
parent as he was the only parent living in the United States. He further requested an
order prohibiting Feliciana from taking the children outside of the United States
while exercising custody, alleging it would be impossible to force Feliciana to return
them. In response, Feliciana asserted a reconventional demand, seeking joint
Pursuant to Uniform Rules— Courts of Appeal, Rule 5- 2, we refer to the minor child by her initials. In this case, the minor child shares the same initials with her older sibling. Thus, we refer to the minor child herein as " MIL.M."
2 custody of the children, partition of community property, and spousal support. The
judgment of divorce was signed on April 21, 2021.
In July 2021, the trial court conducted an evidentiary hearing on issues of
child custody and spousal support. It was established that Feliciana had not
physically seen the children since they left the Philippines, and that Feliciana could
not travel to the United States because her visa was expired and she lacked other
required immigration documentation. In his memorandum filed in advance of the
hearing, John argued that it was in the best interest of the children that they remain
in the United States while either parent exercised custody, citing the cost and length
of travel to the Philippines, as well as the high risk of kidnapping, high crime, and
rampant corruption in the Philippines, as evidenced in a 2020 Human Rights Report.
At the hearing, John introduced a copy of the Human Rights Report into evidence.
Feliciana introduced a printout from the United States Department of State' s website
that listed treaties and other international agreements between the United States and
the Philippines.
After the hearing, the trial court rendered judgment awarding Feliciana
interim spousal support in the amount of $3, 000. 00 per month. The trial court
additionally ordered John to assist with any immigration paperwork necessary for
Feliciana to travel to the United States. The trial court took the child custody matters
under advisement to allow the parties to file post -trial memoranda addressing " the
issue of child abduction and the [ Philippines] as a signatory to the [ Hague]
Convention ... and ...[ the ability to enforce] Louisiana judgments regarding custody
and custodial schedules." Days later, Feliciana filed a rule for contempt, alleging
that John had failed to make any spousal support payments. She subsequently filed
a motion to set final spousal support.
After receiving post -trial memoranda from both parties on the specified
international custody issues, the trial court rendered judgment on October 28, 2021,
3 awarding the parties joint legal custody of MJ.L.M., with John named the
domiciliary parent. The trial court awarded Feliciana periods of physical custody
during the summer, while MJ.L.M. was out of school, specifying that those " periods
of physical custody may take place in the country of the Philippines, or any other
location which may be agreed to by the parties," with costs of travel shared equally
between the parties. The trial court' s judgment additionally stated that Feliciana
was permitted additional custodial time in the United States upon reasonable notice
to John.
The trial court' s accompanying written reasons for judgment explained that at
the hearing, John acknowledged that the parties had been raising the children in the Philippines until their separation. The written reasons set forth that John testified
that he and the children returned to the United States in March 2020, with the
intention that the children would travel back to the Philippines in June; however, as
a result of the COVID- 19 pandemic, the children enrolled in school in Livingston
Parish. As a result of travel complications associated with the COVID- 19 pandemic,
Feliciana had not physically seen the children since March 2020, although she had
daily video calls with them. The trial court acknowledged John' s fears about
allowing the children to travel to the Philippines and stated that, in making its
determination of the best interest of the child, it carefully considered the testimony
and evidence submitted, the applicable law, the parties' post -hearing briefs, and the
relevant factors set forth in La. Civ. Code art. 134.
In June 2022, Feliciana again filed a rule for contempt, contending that John
had not paid any spousal support, that it did not appear John was " doing his portion
on reinstating her passport so that she [ could] travel to the United States," and that
John was ignoring her inquiries about W.L.M. spending the summer in the
Philippines for Feliciana' s physical custody period. In response to the rule for
contempt and Feliciana' s request for final spousal support, John asserted an
El exception of no cause of action, with an incorporated motion seeking to hold
Feliciana in contempt. As to Feliciana' s contempt claims relative to custody, John
contended that Feliciana had misstated and misinterpreted the language of the
custody judgment. Specifically, John argued that the judgment' s provision that
Feliciana' s periods of physical custody of the child " may" take place in the
Philippines was only permissive and did not require him to allow MJ.L.M. to travel
there. As to spousal support, John contended that Feliciana' s claim for interim
spousal support had terminated by operation of law and that their valid and
enforceable prenuptial agreement precluded an award of final spousal support.
A hearing on the rule for contempt as to custody was held on September 6,
2022. At its conclusion, the trial court found that John was in contempt and ordered
him to pay $ 1, 500.00 in attorney fees to Feliciana' s attorney. The trial court ordered
John to present MJ.L.M.' s passport to the court on or before October 5, 2022, or
provide a letter from a valid agency explaining why MJ.L.M. did not have a valid
passport that would allow MJ.L.M. to travel to the Philippines. The trial court
further decreed that MUM. would spend the entire Christmas holiday in the
Philippines with Feliciana, at John' s expense. The trial court' s judgment specifically
provided that if John did not send MJ.L.M. to the Philippines for Christmas, then a
custody modification would be considered.
On October 5, 2022, the trial court held a hearing on issues related to spousal
support. Considering the testimony and evidence presented, the trial court signed a
judgment on October 19, 2022, that denied John' s exception of no cause of action,
incorporated motion for contempt, and request for specific enforcement of the
prenuptial agreement. The trial court further determined that Feliciana was free from
fault in the break-up of the marriage and in need of support, which John had the
ability to pay. Therefore, the trial court ordered John to pay Feliciana $ 3, 000. 00
monthly in final spousal support for a period of three years. With regard to
E MJ.L.M.' s passport, John explained that the renewal would take another seven to ten
weeks.
Later in October 2022, John filed a motion seeking to modify child custody,
establish child support, for contempt, for relief under the Uniform International
Child Abduction Prevention Act "( UICAPA)," and requested an injunction against
mandated international travel. In addition to reiterating his concerns about the
inability to enforce an order to return W.L.M. from the Philippines, John asserted
that Feliciana had made " concerning statements" that he interpreted as threats to
keep W.L.M. in the Philippines and " demonstrated an increasingly brazen disregard
of any legal consequences imposable by a U. S. or Louisiana court." John further
accused Feliciana of providing false testimony at previous hearings. In setting the
matter for hearing, the trial court summarily denied the requested injunction against
international travel.
John also filed a motion for new trial with regard to the trial court' s October
1% 2022 judgment on the issues of final spousal support, claiming it was contrary to
law because no income had been imputed to Feliciana. John additionally based his
motion for new trial on evidence of Feliciana' s income that she had not previously disclosed. Alternatively, John sought a modification of support owed due to a
material change in circumstances based on the newly discovered evidence of
Feliciana' s income.
W.L.M. did not spend the 2022 Christmas holiday in the Philippines. As a
result, Feliciana filed a rule for contempt and to modify custody, pointing out that
she had not seen her minor child in almost three years. She asserted that John' s
refusal to abide by the trial court' s orders, even after being found in contempt,
evidenced his inability to co -parent and amounted to parental alienation. She further
asserted that John' s actions in Islecreting the child from her mother [ were] causing
the child irreparable harm."
0 After several continuances, the trial court held an evidentiary hearing on
March 241, 2023, where it took up all of the matters pending between the parties
except those related to community property. At its conclusion, the trial court held
John in contempt of court and found that John' s actions warranted a change of
custody. The trial court observed that there had been numerous hearings in this case
and that it had rendered a considered decree awarding the parties joint custody with
John named domiciliary parent, which it believed was in MJ.L.M.' s best interest and
recognized the geographic realities of John living in Livingston Parish and Feliciana
living in the Philippines. The trial court stated that it was extraordinarily disturbed
that, since this litigation began, neither of the children had obtained a valid passport
from the United States or the Philippines that would allow them to travel. The trial
court concluded it was evident that John would not comply with the court' s orders
regarding Feliciana' s custodial time and had effectively prevented Feliciana from
seeing her children for more than three years. The trial court further concluded that
John' s actions since the July 2021 custody trial constituted a material change in
circumstances and that continuation of the existing custody arrangement would be
deleterious to MJ.L.M.
Accordingly, the trial court modified the joint custody arrangement by
designating Feliciana the domiciliary parent effective June 1, 2023. The trial court
specified that under the new custody arrangement, MJ.L.M. would attend school in
the Philippines and John would have custodial time during summer vacation. The
trial court clarified that John could also visit W.L.M. in the Philippines anytime he
chose to travel there, upon prior notice to Feliciana. John' s cross- motion to modify
custody, establish child support, and for relief under UICAPA was denied.
Additionally, as a result of the contempt ruling, the trial court ordered John to
pay $ 1, 500.00 in attorney fees and to serve fifteen days in jail, which could be purged
upon proof that MJ.L.M.' s passport was renewed. The trial court denied John' s
7 motion for new trial as to spousal support and alternative motion to modify the
amount of support due.
John now appeals.
CONTEMPT
In two assignments of error, John contends the trial court erred in holding him
in contempt of court for failing to procure a passport for MJ.L.M. and for failing to
facilitate MJ.L.M.' s travel to the Philippines. John' s argument as to the failure to
facilitate travel is based on his interpretation of the trial court' s original October 28,
2021 custody judgment, which awarded Feliciana physical custody during
MJ.L.M.' s summer vacation and provided that those periods of physical custody
may" take place in the Philippines. However, the record reflects that it was the trial
court' s October 19, 2022 judgment that held John in contempt in that regard. That
contempt judgment was not timely appealed and is now final. In the same judgment,
the trial court ordered John to send MJ.L.M. to the Philippines to spend her
Christmas holiday with Feliciana. When that did not happen, Feliciana filed a
second rule for contempt, which resulted in the April 26, 2023 judgment that is
before this court on appeal. Since the October 19, 2022 judgment is not reviewable
in connection with this appeal, we do not address John' s arguments about the proper
interpretation of the original custody judgment' s language and focus our review
solely on the second contempt finding reflected in the April 26, 2023 judgment.
A contempt of court is any act or omission tending to obstruct or interfere with
the orderly administration of justice, or to impair the dignity of the court or respect
for its authority. La. Code Civ. P. art. 221. Willful disobedience of any lawful
judgment, order, mandate, writ, or process of the court constitutes a constructive
contempt of court. La. Code Civ. P. art. 224( 2). To find a person guilty of
constructive contempt, the court must find that he violated the order of the court
intentionally, knowingly, and purposely, without justifiable excuse. Hagen v. Hagen, 2023- 0242 ( La. App. 1st Cir. 9115123), 376 So. 3d 159, 166. If the person is
found guilty of contempt, the court shall render an order reciting the facts
constituting the contempt, adjudging the person charged with contempt guilty
thereof, and specifying the punishment imposed. La. Code Civ. P. art. 225( B). The
punishment that a court may impose upon a person adjudged guilty of contempt of
court is provided in La. R.S. 13: 4611, and includes the potential for both fines and
periods of incarceration. La. Code Civ. P. art. 227.
In making its ruling, the trial court recalled that it first held John in contempt
when MJ. L.M. failed to visit her mother during the summer of 2022. The trial court
then ordered that MJ.L.M. spend the Christmas holiday with her mother. The trial
court stated that on the deadline for John to provide MJ.L.M.' s passport or proof of
why the passport had not been renewed ( October 5, 2022), it was told the passport
process would take another seven to ten weeks. The trial court explained that "[ w] e
just learned that in January 2023 [ John] received notification that some additional
steps needed to be done." However, seventy-three days later, those steps had not
been taken and MJ.L.M. still did not have a valid passport.
At the March 24, 2023 hearing, John testified that his understanding was that
W.L.M. would not be able to enter the United States with a Philippine passport
unless it was accompanied by an American visa, and that she would similarly need
a Philippine visa to enter the Philippines with an American passport.2 Feliciana
testified that she went to the passport center in the Philippines and was told that
MJ.L.M.' s Philippine passport could not be renewed unless MLL.M. was physically
present. She also stated that she had asked John " many times" to send her the child' s
original expired Philippine passport, but he had not done so.
2 The record indicates that an expert in immigration law testified at the original custody hearing; however, a transcript of that proceeding is not part of the record on appeal. John explained that " the proper way" to renew the child' s American passport
would be for the mother and father to present themselves with the child to the
passport agency or post office. John testified that, after the court ordered him to
renew MJ.L.M.' s passport, he went to the post office and was given a list of
requirements for renewal. He introduced into evidence the form entitled " Statement
of Consent: Issuance of a U.S. Passport to a Child" issued by the United States
Department of State, which indicates it is to be used when the legal parent of a child
under the age of sixteen cannot be present to apply with the child for a United States
passport. Through his attorney, John sent the form to Feliciana. The form' s
instructions provide, " This form ... must be notarized."
Feliciana completed the form and had it notarized by an attorney in the
Philippines on September 5, 2022. Feliciana sent the form by overnight mail to her
attorney in the United States who is representing her in this proceeding. Feliciana' s
attorney forwarded the form to John' s attorney and the form was submitted with
MJ.L.M.' s passport application.
At the March 24, 2023 hearing, John' s attorney asked Feliciana if it was true
that MJ.L.M.' s passport application had been denied. After discussion by the
attorneys, Feliciana denied ever being told that MJ.L.M.' s passport had been denied
because the consent form she completed had not been notarized by the United States
Embassy in the Philippines. She further denied being instructed that the form needed
to be notarized by the United States Embassy, stating that the form itself indicated
only that it had to be notarized. Feliciana testified that she received no
communication from the United States Embassy, any passport office, her own
attorney, or John' s attorney that she needed to do anything further with regard to
10 MJ.L. M.' s passport application, despite having appeared for a January court
proceeding.'
In his testimony, John confirmed that on approximately January 10, 2023, he
received a letter from the United States Department of State dated January 4, 2023,
addressed to W.L.M. at his home, which stated that additional information was
needed to process the passport application. Specifically, the letter stated that a
photocopy of the consenting parent' s identification was not attached to the statement
of consent and that the statement of consent itself was insufficient because it was not
notarized by United States Embassy or consulate staff. The letter included a list of
fifty-three countries from which "local notarization" by anyone other than the United
States Embassy or consulate was not being accepted. The letter warned that if the
requested information was not received within ninety days of the letter' s date, then
the passport application may be denied.
John testified that he provided the letter to his own attorney, but he did not
provide the letter or share its content with Feliciana. He explained that he brought
that evidence" with him to the court' s January 18, 2023 status conference
conducted but "[ n] obody ever asked" for it. The trial court asked John why, in the
seventy-three days since the status conference, he had not inquired of his attorney or
anyone else what needed to be done to get the child' s passport. John responded that
he thought he " went through appropriate channels" by handing the information over
to his attorney rather than communicating it to Feliciana. In response to additional
questioning by the trial court, John confirmed that W.L.M. still did not have a valid
passport.
John' s attorney added, " I think we' ve made it abundantly clear that my client
is trying to prevent the child from going to the Philippines." When the trial court
3 Feliciana appeared for all court proceedings via Zoom.
11 asked if he was acknowledging that John was in contempt of court, John' s attorney
answered " No" and attempted to clarify, stating, " we' ve made it clear that he desires
not to send the child." The trial court agreed that John had made that abundantly
clear.
When John was asked if MJ.L.M. could leave the next day for the Philippines
if the trial court so ordered, John answered that MJ.L.M. could not because she did
not have a passport. He was then asked if he would send MJ.L.M. to the Philippines
if she did have a passport and he responded that he could not answer that
hypothetical" question. He stated, " that' s a hypothetical situation because she can' t
leave."
On appeal, John contends that by holding him in contempt the trial court
imposed what amounts to strict liability upon him for circumstances beyond his
control. He argues that the record shows " the lengths he took to procure the child' s
passport" but contains no evidence that his failure to do so " was willful, intentional,
or contumacious." We disagree.
The record overwhelmingly establishes that John has done everything
possible to prevent MJ.L.M. from traveling to the Philippines as ordered by the trial
court. The record further establishes that the passport renewal process requires John
to renew the child' s United States passport and that Feliciana cannot; however, John
has willfully manipulated that process to avoid enforcement of the trial court' s
judgment. John admittedly had notice that MJ.L.M.' s United States passport would
not be renewed without additional documentation from Feliciana but, with his
attorney, failed to disclose that information to the trial court at a status conference
and continued to withhold it until the date of the hearing. The trial court did not
abuse its discretion in finding John in contempt of court for intentionally, knowingly,
and willfully violating its judgment without justifiable excuse.
12 CUSTODY
John next contends that the trial court erred in modifying custody to name
Feliciana the domiciliary parent and in allowing relocation of the child to the
Philippines, despite his request for relief under UICAPA.
Each child custody case must be viewed in light of its own particular set of
facts and circumstances, with the paramount goal of reaching a decision that is in
the best interest ofthe child. See La. Civ. Code art. 13 l; McCormic v. Rider, 2009-
2584 ( La. 2/ 12/ 10), 27 So. 3d 277, 279. The purpose of every custody proceeding,
including an action to change custody, is to ensure the child' s emotional, physical,
material, and social well-being. The court is obligated to protect the child from the
harsh realities of the parents' often bitter, vengeful, and highly emotional conflict.
See Hodges v. Hodges, 2015- 0585 ( La. 11123115), 181 So. 3d 700, 702; Jenkins v.
Jenkins, 2023- 0087 (La. App. 1st Cir. 6/2/23), 370 So. 3d 61, 71.
The burden of proof applicable a request to change legal or physical custody
depends on whether the prior custody award was a considered decree, i.e., an award
made after the trial court received evidence of parental fitness to exercise care,
custody, and control of the child. See Mulkey v. Mulkey, 2012- 2709 ( La. 5/ 7113),
118 So. 3d 357, 364; Melton v. Johnson, 2018- 0403 ( La. App. 1 st Cir. 12112118),
2019 WL 4729852, * 5. A parent seeking modification of a considered decree bears
the heavy burden of proving that a change of circumstances has occurred, such that
the continuation of the present custody arrangement is so deleterious to the child as
to justify a modification of the custody decree, or of proving by clear and convincing
evidence that the harm likely caused by a change of environment is substantially
outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So. 2d 1193,
1200 ( La. 1986); Elliott v. Elliott, 2010- 0755 ( La. App. 1st Cir. 9/ 10/ 10), 49 So. 3d
407, 412, writ denied, 2010- 2260 ( La. 10/ 27/ 10), 48 So. 3d 1088. In contrast, a
parent seeking modification of a non -considered decree need only prove that there
13 has been a change in circumstances materially affecting the welfare of the child since
the prior custody decree and that the proposed modification is in the best interest of
the child. Evans v. Lungrin, 97- 0541 ( La. 216198), 708 So. 2d 731, 738; Jenkins,
370 So. 3d at 72- 73.
The trial court is in the best position to ascertain the best interest of the child
in light of the unique circumstances of the case. Jenkins, 370 So. 3d at 74. The trial
court' s determination in child custody matters is entitled to great weight and its
discretion will not be disturbed on review in the absence of a clear showing of abuse.
Mulkey, 118 So. 3d at 368. In most child custody cases, the trial court' s
determination is based heavily on factual findings. Jenkins, 370 So. 3d at 74. It is
well- settled that an appellate court cannot set aside a trial court' s findings of fact in
the absence of manifest error or unless those findings are clearly wrong. See Kinnett
v. Kinnett, 2020- 01134 ( La. 10110121), 332 So. 3d 1149, 1154. A court of appeal
cannot simply substitute its own findings for that of the trial court. Mulkey, 118
So. 3d at 368.
Here, the trial court correctly applied the Bergeron standard to the cross-
motions to modify the previously entered considered custody decree. The trial court
determined that John' s contemptuous refusal to comply with its orders over the
course of this litigation constituted a change in circumstances materially affecting
the welfare of the child. We find no error in that determination. Louisiana law
specifically recognizes that a pattern of willful and intentional violation of a custody
or visitation order without good cause may be grounds for or constitute a material
change in circumstances warranting modification of an existing custody or visitation
order. See La R. S. 9: 346( H) and 13: 461 l( 1)( f). The record amply establishes that
such is the case here.
In addition to not seeing MU.M. in person for three years, Feliciana testified
that she had only limited communication with her child. She stated that they spoke
14 on Feliciana' s birthday in March, but since then, she had not " heard anything from
them." She explained that she believed John blocked her number so that she could
not reach him on his land line or cell phone and that her only communication with
John was through the Our Family Wizard program.' She testified that her
communication with MJ.L.M. was also limited. Feliciana acknowledged that
MJ. L.M. had a cell phone and that text messages were sometimes exchanged;
however, Feliciana speculated that John sometimes took the phone and responded
as MJ. L.M. Feliciana described additional communication with MJ.L.M. through a
messenger app and occasional brief video calls that lasted less than fifteen minutes.
John testified that after MJ.L.M. began seeing a therapist at the court' s
direction, he asked the therapist if he should make MJ. L.M. call Feliciana. He said
the therapist suggested setting a specific time of day for MJ.L.M. to call. He set the
time for when MJ.L.M. got home from school, which he noted was convenient for
MJ.L.M., but because of the time difference, was at 3: 00 a.m. for Feliciana. He later
stated that Feliciana refused to set aside a specific time for the calls. John further
stated that he takes MLL.M.' s phone from her every night at approximately 7: 00
p.m. because she needed to get up for school the next day. He denied having the
phone' s password or pushing MJ.L.M. to divulge any communications with her
mother.
John additionally testified that he explained to MJ.L.M. his belief that if she
went to the Philippines, then her mother would not allow her to return to the United
States. He could not recall if he advised Feliciana about certain activities MJ. L.M.
a John' s attorney asked her to confirm that there was an absolute prohibition against the parties communicating with each other except through the program, which led the trial court to question where that prohibition was set forth in the judgment. Feliciana' s attorney responded that it was not in the judgment. John' s attorney stated that he understood that the parties were ordered to communicate through the program, which he typically interpreted as an absolute prohibition against other forms of communication. The trial court clarified that it ordered use of the program as a tool but did not prohibit other communication.
15 was involved in, such as a talent show. When asked what he had told Feliciana
about, he stated that when he responded to anything Feliciana said through Our
Family Wizard, Feliciana made derogatory remarks.
While some of the time apart was due to the COVID- 19 pandemic, the trial
court further found that John' s actions in preventing MJ. L.M. from seeing her
mother thereafter were so deleterious to MJ.L.M. that modification of the custody
arrangement was required. Again, we find no error in the trial court' s determination
in that regard and conclusion that the Bergeron standard was satisfied with regard
5 to Feliciana' s motion to modify custody.
As a result of its findings, the trial court modified the custodial arrangement
to name Feliciana the domiciliary parent and ordered that MJ.L.M. would spend the
school year in the Philippines with Feliciana and the summers in Louisiana with
John. On appeal, John contends that the trial court erred in doing so because the
issue of relocation was not properly pled. We find that this argument is absolutely
without merit. Every aspect of this case has addressed the reality that Feliciana lives
in the Philippines and cannot enter the United States. We agree with the trial court
that Feliciana' s request to modify custody to designate her the domiciliary parent
necessarily included a request to relocate MLL.M. to the Philippines.
John next contends that the evidence presented at trial does not support
relocation of the child to the Philippines. John argues that the trial court effectively
extradited MLL.M. to a second -world country that is not a Hague Convention
S John argues that a party' s contemptuous behavior alone does not create a basis for modification of a considered decree, citing Gray v. Gray, 2011- 548 ( La. 711111), 65 So. 3d 1247, In Gray, the Louisiana Supreme Court held that La. R.S. 9: 355. 11 of the relocation statutes, which provides that moving without a court or order or moving in violation of a court order may constitute a change of circumstances warranting a modification of custody, did not create an exception to the Bergeron standard. Gray, 65 So. 3d at 1259. The Court then concluded that under the facts of
that case, there was no showing that the unauthorized relocation of the child to Kansas from Alabama materially affected the child' s well-being or interfered with visitation. Gray, 65 So. 3d at 1264. The case sub judice is factually and legally distinguishable. La. R.S. 9: 355. 11 is not at issue. Moreover, it has been shown that John' s behavior isolated W.L.M. from her mother. Under these circumstances, the Bergeron standard was satisfied.
16 signatory based solely on its finding that he was in contempt, without consideration
of the relocation factors required by La. R.S. 9: 355. 14.
We reiterate that in every child custody case, custody must be awarded in the
best interest of the child. La. Civ. Code art. 131; Bergeron, 492 So. 2d at 1201. La.
Civ. Code art. 134( A) directs courts to consider all relevant factors in determining
the best interest of the child, which may include:
1) The potential for the child to be abused, as defined by Children' s Code Article 603, which shall be the primary consideration.
2) The love, affection, and other emotional ties between each party and the child.
3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and
rearing of the child.
4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
5) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of that environment.
6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
7) The moral fitness of each party, insofar as it affects the welfare of the child.
8) The history of substance abuse, violence, or criminal activity of any party.
9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
0 0) The home, school, and community history of the child.
11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child' s safety or well- being while in the care of the other party.
17 13) The distance between the respective residences of the parties.
14) The responsibility for the care and rearing of the child previously exercised by each party.
The weight to be given each factor is left to the discretion of the trial court.
The trial court is not bound to make a mechanical evaluation of or provide a literal
articulation of all of the factors and is not required to specifically explain its
weighing and balancing of the factors. Rather, the trial court should decide each
case on its own facts and circumstances in light of Article 134 and other relevant
factors. Couvillon v. Couvillon, 2023- 0056 ( La. App, 1st Cir. 8/ 29/ 23), 2023 WL
5542771, * 3 ( unpublished).
When the practical effect of a custody judgment is the relocation of the child,
the trial court must additionally consider the relocation factors set forth in La. R.S.
9: 355, et seq. Trahan v. Kingrey, 2011- 1900 ( La. App. 1st Cir. 5/ 4/ 12), 98 So. 3d
347, 351, writ denied, 2012- 1586 ( La. 8/ 1/ 12), 92 So. 3d 351; Bonnecarrere v.
Bonnecarrere, 2011- 0061 ( La. App. Is' Cir. 7/ 1/ 11), 69 So. 3d 1225, 1233; see also
Ramirez v. Hite, 2015- 1179 ( La. App. 1st Cir. 12/ 13/ 15), 2015 WL 9466920, * 4
unpublished). As it applies to child custody, " relocation" includes an attempt to
change the location previously designated by the court as the child' s primary
residence to a location outside of Louisiana, irrespective of the geographic location
of the parents. See La. R.S. 9: 355. 1 and 9: 355. 2( B)( 1); Nelson v. Land, 2001- 1073
La. App. 1st Cir. 11/ 9/ 01), 818 So. 2d 91, 93- 94 ( citing Bullock v. Bullock, 98- 0206
La. App. 4th Cir. 1/ 29/ 98), 706 So. 2d 671, 672). When the relocation of the child' s
primary residence is contested, La. R.S. 9: 355. 10 requires that the proponent of
relocation prove that the proposed relocation is made in good faith and in the best
interest of the child. Thus, Louisiana' s relocation statutes retain the best interest of
the child standard as the fundamental principle governing decisions made pursuant to its provisions. Bridges v, Bridges, 2020- 0300 ( La. App. 1st Cir. 11110120), 316
So. 3d 17, 24.
Specifically, La. R.S. 9: 355. 14( A) provides:
In reaching its decision regarding a proposed relocation the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non -relocating person, 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.
3) The feasibility of preserving a good relationship between the non - relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
4) The child' s views about the proposed relocation, taking into consideration the age and maturity of the child.
S) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
7) The reasons of each person for seeking or opposing the relocation.
8) The current employment and economic circumstances of each person and how the proposed relocation may affect the
circumstances of the child.
9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
10) The feasibility of a relocation by the objecting person.
11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure of any attempts at rehabilitation.
19 12) Any other factors affecting the best interest of the child.
Although La. R.S. 9: 355. 14( A) requires the trial court to consider all twelve
factors in a relocation case, it is not necessary that the trial court expressly analyze
each factor in its oral or written reasons for judgment and its failure to do so does
not constitute an error of law. Gray v. Gray, 2011- 548 ( La. 711111), 65 So. 3d 1247,
1255; State v. Titus, 2018- 1511 ( La. App. 1st Cir. 2/ 28119), 274 So. 3d 591, 600.
Ultimately, the question to be determined by the appellate court on review is whether
the trial court, having properly considered all of the factors in La. R.S. 9: 355. 12,
abused its discretion in determining that the relocation would be in the child' s best
interest Gray, 65 So.3d at 1255.
After careful review, we find that the trial court sufficiently considered all
relevant factors in making its determination that it is in NILL.M.' s best interest that
custody be modified to name Feliciana the domiciliary parent, meaning that MJ.L.M.
will primarily reside in the Philippines. This entire custody litigation has focused
on the amount of time MJ. L.M. should spend in the Philippines with Feliciana.
While John now vehemently objects to MJ.L.M. traveling to the Philippines at all, it
is undisputed that the Philippines was MJ.L.M.' s home from the time of her birth
until John effectively relocated her to the United States in 2020. In the Philippines,
MJ.L.M. attended a private Catholic school where she did well, had friends, and
lived near her large extended family. Feliciana testified that upon her return,
MJ.L.M. would attend the same school and live in the same home in which she was
raised. Again, this case is not a typical request for relocation; rather, it is a request
to return MJ.L.M. to what was her home for the majority of her life. In light of the
trial court' s findings that John' s actions constitute a change in circumstances
materially affecting MJ.L.M.' s welfare and that continuation of the present custody
arrangement ( i.e., living primarily in the United States with John) is so deleterious
to MJ. L.M. as to justify a modification of the custody decree, and considering the relevant factors for relocation and the best interest of the child, we find no error in
the trial court' s determination that it is in MJ.L.M.' s best interest to modify the prior
custody decree to name Feliciana the domiciliary parent.
John argues, however, that UICAPA, set forth in La. R.S. 13: 1851 et seq.,
should be enforced and any travel by MJ. L.M. to the Philippines should be
permanently enjoined. UICAPA authorizes courts to take abduction prevention
measures if there is a credible risk of abduction of the child, as determined by
enumerated factors and evidence presented by the parties. See La. R.S. 13: 1857 and
13: 1858- 1859. One factor to be considered is whether the child will travel to a
country that is not a signatory to the Hague Convention. See La. R.S.
13: 1857( A)(8)( a).
In response to John' s request for relief under UICAPA, the trial court
summarily denied his request for a preliminary injunction prohibiting international
travel for MJ.L.M. At the March 24, 2023 hearing, when John' s counsel asked
questions about whether the Philippines was a signatory to the Hague Convention,
the trial court ruled, " I' ve already heard this ... from prior counsel, and I had them
brief the issue in a post[ -]trial memorandum. So I am aware — I' m aware of that
position."
Throughout this proceeding, John has asserted that Feliciana threatened to
keep the children in the Philippines if they returned. At trial, he testified that
Feliciana' s threats against were evident in messages they exchanged through Our
Family Wizard. As a specific example, John read Feliciana' s message of February
27, 2022, which stated:
Mr. Morgan I haven' t heard from [MJ.L.M.] for 4 days now! You took our children for 2 years now. Your [ sic] so heartless. How can you sleep at night with what you did to me. You will answer everything to God. You took our children without my consent.
6 John incorrectly identified the date of the message as February 22, 2022.
21 John explained that he knew this was a threat because he believed Feliciana could
intercede in prayer. John also read Feliciana' s next message, which stated, " You
will pay to the Lord every tears [ sic] drop." John stated he believed this showed
Feliciana' s state of mind was " that she' s willing to maybe assist God in doing his
job." John clarified that he did not feel threatened while in the United States, but he
would feel threatened in the Philippines, which meant he could not help MJ.L.M. if
she were there.
Feliciana denied that her messages were threats. At the conclusion of the
hearing, the trial court denied John' s request for relief under UICAPA.
The record establishes that John has raised the issue of MJ.L.M.' s safety in
the Philippines since the start of this litigation. Further, the arguments that he now
raises in support of his request for relief under UICAPA were before the trial court
when it rendered its original custody judgment that permitted Feliciana to exercise
custody of MJ.L.M. in the Philippines. That judgment was not appealed. The trial
court rejected the arguments a second time in denying John' s request for relief under
UICAPA. Since a transcript of the original custody trial is not included in the
appellate record, we cannot determine whether any new evidence relative to
MJ.L.M.' s safety in the Philippines was adduced at the modification hearing.
However, the trial court' s judgment is presumed to be correct. Miller v. Dicherry,
2020- 0365 ( La. App. 1 st Cir. 11124120), 316 So. 3d 477, 480.
With regard to the conflicting testimony about whether Feliciana' s messages
to John should be interpreted as threats, the trial court was presented with a
credibility determination and determined that Feliciana was more credible than John.
When findings are based on determinations of credibility of witnesses, the manifest
error -clearly wrong standard demands great deference to the findings of the trier of
fact. See Hayes Fund for First United Methodist Church of Welsh, LLC v.
22 Kerr-McGee Rocky Mountain, LLC, 2014- 2592 ( La. 12/ 8/ 15), 193 So. 3d 1110,
1116.
Based on the appellate record before us and again noting that John and
Feliciana raised their children in the Philippines for most of MJ.L.M.' s life, we find
no error in the trial court' s ruling.
SUPPORT
In the same judgment that modified custody, the trial court denied John' s
motion for new trial as to spousal support and alternative motion for modification of
spousal support due to an alleged material change in circumstances. On appeal, John
contends the trial court erred in doing so.' He also contends the trial court erred in
denying his motion for continuance as to these issues because Feliciana provided
requested discovery only the day before!
As is relevant here, a new trial shall be granted when the judgment appears
clearly contrary to the law and the evidence or when the party has, since the trial,
discovered evidence important to the case that he could not have obtained with due
diligence before or during the trial. La. Code Civ. P. art. 1972. Additionally, a new
trial may be granted in any case for good cause. See La. Code Civ. P. art. 1973. The
trial court' s discretion in ruling on a motion for new trial is great and its decision
7 John' s arguments are specific to the denial of the motion for new trial and do not evidence his intent to appeal the merits of the trial court' s October 19, 2022 spousal supportjudgment. Compare Reed v. Louisiana Horticulture Commission, 2021- 0657 ( La. App. 1st Cir. 12122121), 341 So. 3d 66, 68 n.2 ( recognizing that where it is clear from the appellant' s brief that he intended to appeal a judgment on the merits, along with a judgment denying a motion for new trial, an appellate court will consider the appeal to be an appeal of the judgment on the merits even though the notice of appeal only refers to the judgment denying the motion for new trial). Additionally, although John' s assignment of error purports to challenge the trial court' s denial of his alternative motion to modify spousal support based on a material change in circumstances, that issue was not briefed. Thus, we consider it abandoned. See Uniform Rules— Courts of Appeal, Rule 2- 12. 4( 13)( 4).
8 When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him. Samuel v. Harris, 2021- 1577 La. App. 1st Cir. 613122), 342 So. 3d 1009, 1011 n. 2.
23 will not be disturbed on appeal absent an abuse of that discretion. Samuel v. Harris,
2021- 1577 ( La. App. 1 st Cir. 613122), 342 So. 3d 1009, 1011.
John' s motion for new trial alleged that before the October 5, 2022 trial on
spousal support, the trial court denied his motion to compel and continue that hearing
despite evidence and international investigative resources becoming available" as
to Feliciana' s earnings and income. According to John' s motion, the trial court then
declined to impute any income to Feliciana. The trial court' s October 19, 2022
judgment awarded Feliciana $3, 000 per month in final spousal support. John argued
that a new trial was mandated because the judgment was clearly contrary to law since
no income was imputed to Feliciana and because new evidence proved transfers to
an account in Feliciana' s name, which she failed to disclose in discovery and denied
under oath. John further alleged that the discretionary grounds for new trial were
satisfied due to Feliciana' s " repeated and intentional acts of perjury under oath,
denying facts that she should have admitted, [ refusal] to produce records of the
account said funds were transferred to, and [ use ofJ the American Judiciary to
arbitrarily harass, extort, and capriciously vex" him. Alternatively, he asserted that
proof of the transfer of funds amounted to a material change of circumstance that
warranted modification or termination of spousal support.
At the start of the March 24, 2023 hearing, John' s counsel made an oral
motion for continuance of the spousal support issues, contending that he had just
received relevant discovery from Feliciana the day before. Feliciana' s counsel
admitted that some discovery was provided the day before, but contended it was only
three pages that would have taken minimal time to review, and that John had
continually argued that discovery responses were insufficient as a delay tactic.
John' s counsel countered that Feliciana continued to produce additional records after
denying that any further records existed. He asserted that this was material to the
24 issue of whether W.L.M. should be relocated to the Philippines and " especially the
immigration issue." The trial court summarily denied the motion to continue.
Proceeding with his motion for new trial, John then called Feliciana' s nephew,
Maxmar Saura, to testify. Saura described working for Feliciana and his observation
of dirt operations on Feliciana' s farm that involved several contractors. However,
he also testified that Feliciana fired him the previous October, that she then pressed
charges against him, and that he had no knowledge of her current financial situation,
stating that he last went to Feliciana' s house " a very long time ago." He additionally
testified that since being fired, John, paid him a monthly allowance of 5, 000 pesos
but denied that John paid him for his testimony. In connection with Saura' s
testimony, John introduced a copy of a delivery receipt from a sand and gravel quarry
dated October 12, 2022, which Saura identified as the receipt he received after
moving land" for Feliciana. Feliciana disputed Saura' s testimony, stating, " He is
making stories."
John' s attorney questioned Feliciana about why she did not provide
information about a particular bank account prior to the hearing on Feliciana' s
request for final spousal support. She explained that the account was opened on
September 1, 2022, at Saura' s request so that Saura could use her business name for
an isolated contract. In connection with that testimony, John introduced a photocopy
showing a mobile device accessing Feliciana' s banking account that showed receipt
of a transfer on October 24, 2022, in the amount of "PHP 102, 600. 00." Feliciana
denied that this evidenced " a deal that [ she] had been working [ on] before the trial
date," and accused Saura of illegally accessing her banking records. John suggested
that this evidence conclusively proved that Feliciana failed to provide relevant
financial information.
At the conclusion of the hearing, the trial court denied John' s motion for new
trial and alternative motion to modify spousal support due to a material change in
25 circumstances. After review, we find that the trial court did not abuse its discretion
in so ruling. The record before us does not establish either mandatory or permissive
grounds for a new trial. Saura' s testimony was equivocal at best and was subject to
the trial court' s assessment of Saura' s credibility. More importantly, the receipts
and financial evidence that John introduced concern transactions that occurred after
the October S, 2022 hearing on spousal support. In light of this, we also find that
the trial court did not err or abuse its discretion in denying John' s motion to continue
the hearing on these issues.
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed
to the appellant, John Pickney Morgan.
AFFIRMED.