Leaf v. Leaf

929 So. 2d 131, 2006 WL 1046978
CourtLouisiana Court of Appeal
DecidedMarch 2, 2006
Docket2005-CA-0592
StatusPublished
Cited by5 cases

This text of 929 So. 2d 131 (Leaf v. Leaf) 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
Leaf v. Leaf, 929 So. 2d 131, 2006 WL 1046978 (La. Ct. App. 2006).

Opinion

929 So.2d 131 (2006)

Margaret Gaffney LEAF
v.
Peter Albin LEAF.

No. 2005-CA-0592.

Court of Appeal of Louisiana, Fourth Circuit.

March 2, 2006.

*132 Jane Ettinger Booth, Booth & Booth, APLC, Amite, LA, Stacey LaFleur-Spawn, New Orleans, LA, for Plaintiff/Appellant.

Bennett Wolff, Hayley Harmon, Wolff & Wolff, Metairie, LA, for Defendant/Appellee.

(Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

Margaret Gaffney Leaf ("Ms.Leaf") appeals the trial court's denial of her petition to permit relocation.

Appellant, Ms. Leaf, and Appellee, Peter Leaf, were married in Santa Fe, New Mexico, on May 20, 1997. They had one daughter, Pearlie Leaf ("Pearlie"), who was born November 13, 1998. Ms. Leaf filed for divorce on January 21, 2000. Ms. Leaf has been the primary caretaker of Pearlie since Pearlie's birth. Peter Leaf has since re-married and lives with his wife and new baby daughter, Corrina.

On a visit to Maryland, in September of 2004, Ms. Leaf interviewed for a position at Salisbury Middle School. Soon after, she was given a verbal offer of a teaching position at Salisbury Middle School. Ms. Leaf then gave notice to her former spouse, Peter Leaf, regarding her intention to relocate to Salisbury, Maryland with Pearlie prior to filing her petition to relocate. Peter opposed the relocation. A hearing was held on November 16-18, and 23, 2004. Ms. Leaf's request to relocate was subsequently denied by a judgment rendered January 7, 2005.

An appellate court reviews a trial court's determinations under the manifest error-clearly wrong standard. "A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of `manifest error' or unless it is `clearly wrong.'" Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); See Rosell v. ESCO, 549 So.2d 840 (La.1989). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the Louisiana Supreme Court reiterated the two-part test for the reversal of a fact finder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Supreme Court recently held that a "trial court's determination in a relocation matter is entitled to great weight and will not be overturned an [sic] appeal absent a clear showing of abuse of discretion." Curole v. Curole, XXXX-XXXX, p. 4 (La.10/15/02); 828 So.2d 1094, 1096.

La. R.S. 9:355.13 sets forth the burden of proof in a relocation hearing, and provides:

*133 The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child's best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent's general quality of life. (emphasis added).

As the Supreme Court noted in Curole, "our legislature made a policy determination that relocation is not to be automatically considered as being in the best interest of the child." XXXX-XXXX, p. 5 (La.10/15/02); 828 So.2d at 1097. Thus the legislature installed a two-part burden on those wishing to legally relocate a child. Ms. Leaf has shown good faith, but the parties disagreed on whether the move was in the best interest of the child.

La. R.S. 9:355.12 sets forth twelve factors the court must consider in reaching its decision on a proposed relocation. After thoroughly considering all twelve factors together with testimony of several witnesses, the trial court determined that relocation would not be in the best interest of Pearlie and denied Ms. Leaf's motion.

Ms. Leaf contends that the trial court erred in determining that Ms. Leaf's previous requests for supervised visitation amounted to her failure to promote her daughter's relationship with the defendant. La. R.S. 9:355.12(A)(5) requires the trial court to consider "[w]hether there is an established pattern of conduct of the party seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party." She defends the many accusations she made against Peter Leaf as the legitimate concerns of a good mother, and she asserts that she was only following the recommendations of Eugenia Patru, a court-appointed custody evaluator. In the trial court's reasons for judgment, Judge Cates wrote:

Mrs. Leaf testified extensively at trial and argued in memo that she has never thwarted or refused Mr. Leaf's visitation. Instead, she asserts that she has attempted to foster the father/daughter relationship.
Mr. Leaf was denied visitation with his daughter for a significant amount of time in 2000 and 2001. Mrs. Leaf asserts that some of these missed visits were the result of confusing Court Orders regarding supervision and that she has never been found to have violated any Court Order on visitation. The Court finds Mrs. Leaf's testimony on this subject insincere and disingenuous.
Mrs. Leaf has advocated supervised visitation almost from the outset. Mrs. Leaf argues that it was the Judge who ordered the supervision and she was merely following that order. While it is true that supervision was ordered by the Court, those orders were made following allegations and/or insinuations by Margaret Leaf of abuse or impropriety on the part of Peter Leaf. Those allegations and/or insinuations made by Margaret Leaf, which were the basis for orders requiring supervised visitation, include:
a) Allegations by Margaret Leaf that she was stabbed with a fish filet knife by Peter Leaf at their home in front of two friends during a dinner party. Although Mrs. Leaf testified regarding the severity of the incident, she stated that immediately after the stabbing, she merely cleaned the wound and rejoined the dinner party, as if nothing had happened. Neither of the two friends/witnesses testified regarding the alleged stabbing, no one saw the wound, the police were not called, and Mrs. Leaf at no point attempted to get medical treatment *134 for the wound. Mr. Leaf denies the entire incident. The Court finds Mrs. Leaf's description of this unsubstantiated incident to be incredible.
b) Allegations by Margaret Leaf to Dr. [sic] Patru regarding possible criminal conduct, including some drug and narcotics sale and use by Peter Leaf. The Court also heard some vague allegations regarding pornography. None of these allegations and insinuations were supported by any facts.
c) Allegations by Margaret Leaf regarding alleged abuse of Pearlie by her father.

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Bluebook (online)
929 So. 2d 131, 2006 WL 1046978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leaf-v-leaf-lactapp-2006.